Central Freight Lines, Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1961

133 N.L.R.B. 393 (N.L.R.B. 1961)

CENTRAL FREIGHT LINES, IN C. 393
several of the Respondent 's officials walked the picket line themselves and begged the
striking employees to return to work. The record clearly shows that the Respondent's.
conduct at both its Bucyrus and Carey, Ohio, plants was open and aboveboard, so,
to speak. There is no substantial evidence that the Respondent was motivated by a
desired to "punish" its striking employees by granting superseniority to those em-
ployees who reported for work.
In the circumstances discussed and described above, the Trial Examiner is con--
vinced and finds the sole motivation behind the Respondent 's conduct at its Bucyrus:
and Carey, Ohio, plants was for legitimate economic reasons, and hence permissible
and not violative of the Act. Consequently he will recommend below that the com-
plaints in Cases Nos 8-CA-2195 and 8-CA-2208 be dismissed in their entirety.
Upon the basis of the foregoing findings of fact , and upon the entire record,
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent occur in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the-
Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the com-
plaints within the meaning of Section 8(a) (1) and (3) of the Act
[Recommendations omitted from publication.]
Central Freight Lines, Inc. and Chauffeurs, Teamsters and
Helpers Local Union No. 393, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Independent and General Drivers, Warehousemen and Helpers
Local Union No . 968, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Inde-
pendent and Dallas General Drivers , Warehousemen and
Helpers, Local Union No. 745, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of America,
Independent . Cases Nos. 23-CA-847, 23-CA-872, and 16-CA-
1326. September 26, 1961
DECISION AND ORDER
On July 12, 1960, Trial Examiner James F. Foley issued his Inter-
mediate Report in the above-entitled proceedings, 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 Intermediate Re-
port attached hereto. Thereafter, the Respondent filed a motion for
remand or hearing de novo,I exceptions to the Intermediate Report,
and a supporting brief.
'Subsequent to the hearing , Respondent in the alternative, moved to dismiss the com-
plaint or to remand the case for a hearing de novo. Respondent asserts, as grounds for
its motion , that ( 1) the Trial Examiner assumed the role of advocate throughout the
proceedings as demonstrated by the record as a whole and the Intermediate Report ;
133 NLRB No. 32.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
'The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions sand brief,2 and the entire record in this
-and (2 ) counsel for the General Counsel interfered in an unwarranted manner in the
investigation of the case , particularly in reference to his conduct toward employee
James Peden.
With respect to the Trial Examiner's findings and conclusions , as the Supreme Court
has stated , even "total rejection of an opposed view cannot of itself impugn the integrity
or competence of a trier of facts " NLRB. v Pittsburgh SS. Company, 337 U.S
656, 659 . Moreover , upon careful examination of the entire record and the Intermediate
Report , we are satisfied that the contention of the Respondent that the Trial Examiner
assumed the role of advocate is without merit.
As to the alleged unwarranted interference by counsel for the General Counsel, the
record shows the following , James Peden , a witness called by the General Counsel,
testified that counsel for the General Counsel had, during the course of his investigation
of the case , asked whether or not he , Peden, had heard any rumor that he was to be
discharged Peden denied knowledge of it and, at the time of the hearing , was still in
Respondent ' s employ No charge had been filed with respect to Peden, and the Trial
Examiner made no reference to his testimony in the Intermediate Report As such testi-
mony had no bearing on the issues framed by the pleadings in the case , we conclude that
no valid basis exists for dismissal or remand on the asserted ground that General Counsel
engaged in unwarranted interference . See Harold Hibbard and Ben R Stein , Individually
and as a Partnership , d/b/a Hibbard Dowel Co., 119 NLRB 1763, 1764-1765. Moreover,
the Respondent had committed substantially all of its unfair labor practices prior to the
instant conduct , hence the finding of the violations and the necessity for dissipating them
could not , in any event , be affected by the General Counsel ' s conduct. Accordingly,
Respondent 's motion is denied.
2In its brief Respondent renewed its motion to sever Case No 23 -CA-847 on the
-grounds ( 1) that this case arose in the Board ' s Sixteenth Region (not the Twenty-third
Region which issued the complaint ) and (2 ) consolidation was effected by telegram from
the General Counsel , which, Respondent asserts, is a procedure not in compliance with Sec-
tion 102.33 of the Board's Rules and Regulations, Series 8, inasmuch as such telegram
is not a formal pleading Respondent also moves to dismiss the complaint in Case No
23-CA-847 on the ground that the Trial Examiner lacked authority to hear the case in
the Twenty-third Region.
Section 102 33 clearly authorizes the General Counsel to transfer any charge filed in
any Region, and any proceeding which may have been initiated with respect thereto, to
any other Region , and to consolidate any such charge or derivative proceeding with any
other proceeding which may have been instituted or transferred to such Region More-
over , Section 102 33 does not require any special means ( I e., letter, telegram, etc ),
whereby the General Counsel must make such consolidation. Accordingly , we conclude
that the Trial Examiner had authority to hear all the cases 'which were consolidated
herein, and that the General Counsel's method of consolidation was not improper There-
fore, we deny Respondent ' s motions
The Respondent also renewed its objection to the consolidation of Case No 16-CA-1326
with Cases Nos. 23-CA-847 and 23-CA-872 and the reopening of the record herein, prin-
cipally on the ground that the matters alleged in Case No. 13-CA-1326 were separate
and distinct from • the matters in the other two complaints . However, Section 102 35,
subparagraph ( h), authorizes the Trial Examiner to dispose of,procedural questions in-
cluding the reopening of hearings . Inasmuch as the parties and issues of the three com-
plaints are related, we believe that the consolidation was not improper. See Palmer
Manufacturing Corporation , 94 NLRB 1477 , 1478, footnote 3. Accordingly , we overrule
Respondent 's renewed objection.
CENTRAL FREIGHT LINES, INC. 395
case, and hereby adopts the findings, conclusions,' and recommenda-
tions of the Trial Examiner.4
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Central Freight
Lines, Inc., its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Chauffeurs, Teamsters, and Help-
ers Local Union No. 393; Dallas General Drivers, Warehousemen and
Helpers, Local Union No. 745; General Drivers, Warehousemen and
Helpers Local Union No. 968; and Chauffeurs, Teamsters and Help-
ers Local Union No. 47, all affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Independent, or in any other labor organization of its employees, by
discharging employees or refusing to reinstate them or withholding
wage increases from them, or in any other manner discriminating
against them in regard to their hire or tenure of employment or any
term or condition of employment.
(b) Interrogating its employees as to their union activities, inter-
ests, or affiliations, in a manner constituting interference, restraint,
or coercion.
(c) Threatening its employees with reprisals, including loss of em-
ployment, if they engage in union'or other concerted activities.
(d) Promising or granting benefits to its employees if they do not
engage in union or other concerted activity, except that this Order
does not require Respondent to withdraw, or ,to cease continuing in
effect, any wage increases, pensions, or other benefits heretofore in
effect.
(e) Discharging or otherwise discriminating against an employee
because he has given testimony on behalf of the General Counsel of
the Board, in an unfair labor practice' proceeding, or in any other
proceeding under the Act.
8 Member Rodgers disagrees with the finding in section III, B, 3, of the Intermediate
Report that the Employer violated the Act by placing into effect , in January 1960, the
pension plan announced to the 'employees in November 1958. In his opinion, the Employer
was not , 8 months after the May 1959 election which the Union lost , still under any
prohibition against instituting this benefit, or under any obligation to renege on the prior
announcement . Member Rodgers also disagrees with the finding in section 3(j) of the
Intermediate Report that the Employer violated Section 8 ( a) (1) of the Act As the
Employer had nothing to do with the creation or circulation of the antiunion petition,
he regards the Employer 's announcement of his appreciation as an exercise of free
,speech, protected by Section 8(c) of the Act. '
4 The Respondent 's request for oral argument is denied , because, in our opinion, the
record, exceptions , and brief adequately set forth the position of the ' parties
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) In any other manner interfering with, restraining, or coercing
employees in the exercise of the rights to self-organization, to form
labor organizations, to join or assist the aforesaid Unions, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities.
for the purpose of collective bargaining or other mutual aid or pro-
tection, and to refrain from any or all such activities.
2. Take the following affirmative action which the Board finds,
will effectuate the policies of the Act:
(a) Offer Leonard F. Clay, Monie Denman, Johnie D. Harris,
Riley LaComb, Robert P. Lambert, Thomas L. McCollum, James W.
McEntire, Urban L. Miller, Jr., Doyle E. Shields, W. G. Swearingen,
Clois G. Taylor, and Reid A. Thompson immediate and full rein-
statement, without prejudice to their seniority and other rights and
privileges, to their former or substantially equivalent positions, and
make them whole for any loss of earnings suffered by reason of the
discriminations against them, both in respect to the discriminatory
withholding of wage increases and in respect to their discriminatory
discharge, in the manner set forth in that section of the Intermediate
Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amounts of backpay due
and the rights to reinstatement under the terms of this Order.
(c) Post at its principal office in Waco, Texas, and at all terminals
throughout its system, including but not limited to those at Waco,
Dallas, Beaumont, and Wichita Falls, Texas, and at its central main-
tenance and repair shop in Waco, Texas, copies of the notice attached
hereto marked "Appendix." 5 Copies of said notice, to be furnished
by the Regional Director for the Sixteenth Region, shall, after being
signed by Respondent's representative, be posted by Respondent im-
mediately 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 posted. Reason-
able steps shall be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Sixteenth Region, in
writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
5In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a , Decree of the United States Court of Appeals , Enforcing an Order."
CENTRAL FREIGHT LINES, INC. 397
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order 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 discourage membership by our employees in
Chauffeurs, Teamsters and Helpers Local Union No. 393; Dallas
General Drivers, Warehousemen and Helpers, Local Union No.
745; General Drivers, Warehousemen and Helpers Local Union
No. 968; and Chauffeurs, Teamsters and Helpers Local Union
No. 47, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Independ-
ent, or any other labor organization, by discriminatorily discharg-
ing any employee, or refusing to reinstate him, or in any other
manner discriminating against him in regard to his hire or tenure
of employment, or any term or condition of employment.
WE WILL NoT discharge or otherwise discriminate against an
employee because he has furnished information to the General
Counsel of the National Labor Relations Board or has given
testimony in an unfair labor practice proceeding or in any other
proceeding under the National Labor Relations Act, as amended,
as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL NoT interrogate our employees as to their membership
in, interest in, or activities on behalf of the above, or any other
labor organizations, in a manner constituting interference, re-
straint, or coercion.
WE WILL NOT threaten our employees with loss of their jobs
,or other reprisals, if they join, become interested in, or engage in
activities on behalf of the above, or any other labor organizations.
WE WILL NOT promise or grant benefits to our employees to in-
fluence them not to engage in union or other concerted activity,
but we are not required to withdraw or to cease continuing in
effect wage increases, pensions, or other benefits heretofore in
effect.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-
organization, to form, join, or assist the aforesaid Unions, or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual
-aid or protection, or to refrain from any or all of such activities.
WE WILL offer the following employees immediate and full re-
instatement to their former or substantially equivalent positions,
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without prejudice to their seniority and other rights and priv-
ileges, and make them whole for any loss of pay they may have
suffered by reason of the discrimination against them :
Leonard F. Clay James W. McEntire
Monie Denman Urban L. Miler, Jr.
Johnie D. Harris Doyle E. Shields
Riley LaComb William G. Swearingen
Robert P. Lambert Reid A. Thompson
Thomas L. McCollum Clois G. Taylor
WE WILL further make whole Leonard F. Clay, Robert P.
Lambert, James W. McEntire , and Clois G. Taylor for the loss
of the wage increases given to employees in their classifications
but discriminatorily withheld from them.
All employees are free to become, or remain, or refrain from becom-
ing or remaining members of the aforesaid Unions, or any other labor
organization.
CENTRAL FREIGHT LINES, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Cases Nos. 23-CA-847, 23-CA-872,1 and 16-CA-1326, were brought under
Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136),
herein called the Act, on charges filed by Locals 393, 968, and 745, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Independent, on October 28, 1958, January 13, 1959, and January 28, 1960.2 The
first two cases were heard before the duly designated Trial Examiner in Dallas and
Beaumont, Texas, during the period from September 15 to October 9, 1959, on
consolidated complaints of the General Counsel and answers of Central Freight
Lines, Inc., herein called Respondent.3 The third case was heard in Dallas, Texas,
i These cases were originally identified by the numeral "39" Instead of "23 " Thirty-
nine was the number of the Board's office in Houston when it was a Subregional Office
On September 1, 1959, 2 weeks prior to the hearing but later than the dates when the
charges were filed and the complaints issued, this Subregional Office was given the status
of a Regional Office Its identification numeral was changed from "39" to "23 " The
Trial Examiner granted General Counsel's motion for leave to identify these cases on
and after September 15, 1959, by the numeral "23" instead of "39." The cases con-
tinued under the jurisdiction of the Regional Office at Fort Worth by order of the
General Counsel since the charges were filed with, and the complaints were issued by,
that Regional Office, and the cases were processed and prepared for hearing by that
Regional Office.
2 The charge in Case No. 23-CA-847 was amended on November 4 and 12, 1958, and
January 7, 1959 The charge in Case No 16-CA-1326 was amended on February 23,
March 9, and April 14, 1960 Respondent was duly served with the charges and the
amendments in Cases Nos. 23-CA-847, 23-CA-872, and 16-CA-1326
3 On the fifth day of the hearing in Dallas, Texas, Saturday, September 19, 1959, General
Counsel was given leave to amend the complaint in Case No 23-CA-847 to extend certain
allegations therein to include conduct Respondent allegedly engaged in at its Wichita Falls,
Texas, terminal.. Counsel for General Counsel stated in support of his motion for leave
to amend that evidence would not be offered to support the new matter until the hearing
CENTRAL FREIGHT LINES, INC. 399,
from April 25 to April 28 , 1960, on the General Counsel 's complaint , Case No. 16--
CA-1326, dated March 10, 1960, and amended on April 14, 1960'
The complaints and amended complaints allege, and Respondent 's answers deny,.
that Respondent engaged in acts of interference with, and restraint and coercion of,
its employees regarding their union activity and membership , in violation of Section
8 (a) (1) of the Act; discriminatorily discharged five employees employed at its place
of business in Beaumont , Texas, four employees employed at its place of business in,
Dallas, Texas, and two employees employed at its central repair and maintenance-
shop for vehicles and trailers in Waco, Texas, in violation of Section 8(a) (3) of the-
Act; and discriminatorily discharged an employee employed at the Dallas terminal
because he joined or assisted Teamsters , engaged in other concerted activity, and
supplied information to and testified for General Counsel in Cases Nos. 23-CA-847
and 23-CA-872, in violation of Section 8(a)(4), (3 ), and (1 ) of the Acts
All parties were represented at the hearing and were afforded full opportunity to,
be heard to introduce relevant evidence , to present oral argument , and to file briefs-
General Counsel , Respondent , and Charging Parties waived oral argument . General
Counsel and Respondent filed briefs with the Trial Examiner.
Upon the entire record , and from my observation of the witnesses , I hereby make,
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent is a Texas corporation with headquarters at Waco, Texas, engaged
in the State of Texas in the business of a common carrier. It distributes in Texas
freight originating outside or inside the State of Texas, and in Texas interlines freight
having its origin in or outside Texas with carriers who will either deliver it inside
or outside the State or who will interline it with carriers who will move or deliver it in.
States other than the State of Texas. During the 12-month period ending March;
25, 1959, its revenue was in excess of $1,000,000, and during the same period of time
it received in excess of $50,000 for interlining with other carriers general freight
and cargo moving in interstate commerce from and to points outside the State of
Texas. I find that Respondent is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act, and that assertion of jurisdiction is warranted.
II. THE LABOR ORGANIZATIONS INVOLVED
Chauffeurs, Teamsters and Helpers Local Union No. 393, Dallas General Drivers,
Warehousemen and Helpers, Local Union No. 745; 6 General Drivers, Warehouse-
was reconvened in Dallas on September 28, 1959, after 5 days of hearing in Beaumont,
Texas The Trial Examiner adjourned the hearing at or about 11 a in. on September 19,
Instead of the intended 5 p in , in view of the amendment to the pleading. The Trial'
Examiner considered this adjournment adequate in view of the General Counsel's assurance
(with which he complied) that the evidence to support the new allegations would not be
offered until September 28. In any event, the hearing was adjourned from September 30'
to October 5, 1959, a 5-day period, before Respondent's counsel began offering his case-in-
chief except for evidence lie offered out of order in Beaumont, Texas, at his request, and
with the consent of counsel for the General Counsel
4 On March 24, 1960, the Trial Examiner granted General Counsel's motion to reopen
the record and for leave to the Regional Director to consolidate Case No 16-CA-1326
with Cases Nos 23-CA-847 and 23-CA-872, and his motion to remand to permit the
Regional Director to issue an order giving effect to the consolidation, and a notice of
consolidated hearing on the allegations of the complaint In Case No 16-CA-1326 The
Regional Director issued an order of consolidation and notice of hearing dated March 25,
1960
8 At the reopening of the hearing on April 25, 1960, on the amended complaint im
Case No. 16-CA-1326, the Trial Examiner granted Respondent's motion to strike para-
graph 8 of the amended complaint containing allegations of Section 8(a) (1) of the Act,
for General Counsel's failure to furnish a bill of particulars directed to that paragraph
pursuant to the Trial Examiner's order of March 24, 1960. When General Counsel
rested his case-in-chief on, April 26, 1960, the Trial Examiner granted Respondent's motion-
to dismiss the amended complaint insofar as it alleged that employees Monie Denman
and Johnie D Harris were discharged for furnishing information to the General Counsel
in violation of Section 8(a) (4) and (3) of'the Act, because of General Counsel's failure
to offer any evidence that Respondent had knowledge that information had been fur-
nished to the General Counsel by such employees '
e While this local was not identified on the charges in Cases Nos. 23-CA=847 and'
23-CA-872 as a Charging Party, it was permitted on motion to participate, and be repre-
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men and Helpers Local Union No. 968; and Chauffeurs, Teamsters and Helpers
Local Union No. 47 (herein called the Union both jointly and severally), all and each
of them affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Independent (herein called Teamsters), are labor
organizations within the meaning of Section 2(5) of the Act .7
III. THE UNFAIR LABOR PRACTICES
A. General background
Respondent is one of the largest motor carriers in the State of Texas. It is a
distribution carrier. It furnishes direct service to 394 towns and cities, and has ter-
minals in 43 towns and cities, of Texas. These terminals are considered by Respond-
ent as primary and secondary terminals depending on their capacity to handle freight.
Among the primary or major terminals are those at Waco, Dallas, Beaumont, and
Wichita Falls. Respondent employs approximately 1,700 employees. This num-
ber includes line drivers, pickup and delivery drivers, interlining drivers, drivers'
helpers, dock loaders and strippers, other dock pesonnel, mechanics, mechanics'
helpers, and maintenance and custodial personnel, as well as supervisors and office
and other clerical employees. Respondent was started in 1927 by W. W. Callan, the
present chairman of its board of directors. For a number of years, Teamsters and
locals affiliated with Teamsters have sought to organize its employees and represent
them as collective-bargaining representative.
B. Interference, restraint, and coercion
General Counsel by his evidence and argument thereon contends that Respondent
,defeated the organizational drive of the Union which began on or about November 1,
1958, and caused its defeat in a Board-directed election held in its systemwide unit
,on May 1, 1959, by engaging in conduct violative of Section 8(a) (1) of the Act con-
sisting of: (1) Statements disparaging the Union and Teamsters; (2) distributing to
employees by mail and otherwise antiunion literature; (3) soliciting the withdrawal
of union membership applications and authorizations; (4) promising wage increases
and a pension plan, and placing in effect the wage increases and withholding them
from employees friendly to the Union; (5) arranging individual conferences to check
the individual employee's position with respect to the Union; (6) threatening a re-
duction in work hours, the closing down of its smaller terminals, and discontinuance
,or curtailment of service to small communities with a resultant reduction in the
number of employees and take-home pay; (7) showing the purported effect on take-
home pay of such action along with union fees the employees would have to pay in
a schedule distributed to employees prior to the election on May 1, 1959; (8) threat-
ening the use of rundown road equipment and terminal facilities; and a refusal to
,bargain in good faith; (9) threatening to close the Company down or to sell it; and
(10) the indorsing of an employee-signed petition to the Board signed by 700 em-
ployees or more stating, "We, the undersigned, DO NOT want A.F. & L. Teamsters
Union to represent us."
Respondent, on the other hand, by its defense at the hearing and argument there-
on, contends that the statements disparaging the Union and indorsing the employees'
petition to the Board, the distribution of literature, the speeches it made, and the
individual conferences it held with employees, were expressions of opinion and
protected by Section 8(c); that its statements with respect to a reduction in hours,
-take-home pay, the discontinuance of small terminals and service to small com-
munities, and the use of run-down equipment, and terminals, and the schedule show-
ing the take-home pay employees would receive if the Union was successful, were
predictions of economic consequences beyond its control that would follow the
selection of the Teamsters locals as collective-bargaining representative, and also
protected by Section 8(c). It denies that it stated it would close the plant down or
sell it, or refuse to bargin, or that it withheld wage increases because of union activity
sented by counsel, in the hearing on the complaints premised on these charges as em-
ployees of Respondent who were either members of It or authorized it to represent them
were directly involved in Respondent's alleged unfair conduct at its Dallas terminal, and
the charge, as amended , in Case No. 23-CA-847 was filed on its behalf as well as Local 968,
the named Charging Party. It was the named Charging Party in Case No. 16-CA-1326.
7 While Local Union No. 47 is not alleged in any of the complaints to be a labor organiza-
tion, it is the local of Teamsters for the area including Wichita Falls where Respondent
is alleged to have engaged in unfair labor practices Local 393 represents employees In
the area in which the Beaumont terminal is located . Respondent is also charged with
unfair labor practices in this area.
CENTRAL FREIGHT LINES, INC. 401
or membership. It admitted the wage increases and discussions of a pension plan.
It defended the increases as normal and unrelated to union activity or member-
ship. The pension plan, Respondent asserts, had been reaching actual realization
since its initial consideration in 1950, and was part of the benefits that Respondent
could cite as being availiable to the employees without union assistance.
1. Undisputed facts
A number of material and relevant events in evidence through the testimony of
General Counsel's witnesses or documentary evidence offered by General Counsel
are either undisputed or admitted by Respondent. These events are set out in the
following paragraphs.
Beginning in early November 1958, and continuing to on or about May 1, 1959,
the Union stepped up its efforts to organize Respondent's employees. This organiza-
tional effort was spread across Respondent's complete system .8 Respondent through
its officials countered with efforts designed to dissuade its employees from selecting
the Union as its collective-bargaining representative.
In November 1958, Respondent's officials addressed Respondent's employees at
the Dallas, Beaumont, and Wichita Falls terminals about the organizational activi-
ties of the Union and listed to them what they considered to be advantages they had
enjoyed as employees of Respondent and what they considered would be disad-
vantages they would have to assume if they selected the Union to represent them as
a collective-bargaining representative.
The officials who addressed the employees at Respondent's terminals in Novem-
ber were R. H. Linam, T. H. Callan, and Wayne McMahon. Linam, president of
Respondent and member of its board of directors, spoke to the employees at the
Wichita Falls terminal on November 11, 1958. T. H. Callan, manager of the
Dallas terminal and a vice president and member of the board of directors, spoke
to the employees at the Dallas terminal on three occasions on November 12, 1958,
and on two occasions on November 13, 1958. Wayne McMahon, manager of the
Wichita Falls terminal, spoke to the employees at that terminal on November 11 or
12, 1958, and again on November 14, 1958.
Officials of Respondent also talked to employees individually in November and
December 1958 about the same subject matter. W. C. Lackey, operations manager
for Respondent's systemwide operations and former assistant manager of the Dallas
terminal, spoke to Respondent's employees in December 1958; to some around the
first of December and to others around the middle and end of December. He spoke
to them in his office at the Dallas terminal, and in the cafe, yard, and docks of that
terminal, and also in the cabs of the trucks of the drivers assigned to that terminal.
From on or about October 15 to November 6, 1958, James W. Carolan, manager
of the Beaumont terminal, spoke to about 30 out of 46 employees at the Beaumont
terminal who were in the unit the Union was seeking to organize.
On November 7, 1958, Respondent discharged two drivers and three dockmen em-
ployed at the Beaumont terminal; on January 6, 1959, it discharged three drivers and
one helper employed at the Dallas terminal; on January 15, 1960, it discharged a
driver employed at the Dallas terminal; and on March 21 and 28, 1960, it discharged
two mechanics employed at its central repair and maintenance shop for vehicles and
trailers at Waco, Texas. The motive for the discharges is a matter in controversy.
In his addresses to the assembled employees on November 12 and 13, 1958,
T. H. Callan announced a 20-cent wage increase for the 66 "top" pickup and delivery
drivers at the Dallas terminal and increases for the other employees adjusted to the
increase for the "top" men. Generally, the increases were contained in the pay-
checks for the first pay period beginning the Friday following November 12 and 13,
1958. In November 1958, Respondent granted a general wage increase to the em-
ployees at the Beaumont terminal that ran as high in some cases as 30 cents an
hour. In the same month, Respondent granted a wage increase to employees at
the Wichita Falls terminal that ran as high in some instances as 55 cents an hour.
Wage increases were also granted at this time at the other terminals. President
Linam discussed the raise at the Wichita Falls terminal in his address to the em-
ployees of that terminal on November 11, 1958. Additional increases were granted
in February and March 1959.
6 General Drivers and Helpers Local Union No 657 ; General Drivers and Helpers Local
Union No. 940 ; and General Teamsters , Chauffeurs , Warehousemen and Helpers Local
Union No. 583, which are labor organizations and likewise affiliated with the Teamsters,
have also been involved in this organizational effort.
624067-62-vol. 133-27
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 14, 1959, Locals 393, 745, 968, and 47, referred to herein jointly and
severally as the Union, together with Locals 657, 940, and 583, the three other
Teamsters locals engaged in the organizational drive starting in November 1958, filed
with the Board a petition for an election in a systemwide unit of Respondent's em-
ployees excluding only office clerical employees and other office employees, and
guards and supervisors. The Respondent and the seven Teamsters locals stipulated
the appropriateness of this unit.
On April 6, 1959, the Board directed an election in the stipulated unit to be held
not later than May 6, 1959. The election was held on May 1, 1959. Of the 999
valid votes counted, 207 were for the 7 petitioning Teamsters locals and 792 were
against them ; 134 votes were challenged. The seven locals filed objections to the
conduct of the election but withdrew them on June 26, 1959. On the same date,
the Board certified that a majority of the ballots cast in the election were not cast
for the petitioning locals, and that they, as a result , were not the collective-bargaining
representative of Respondent's employees.
-Between the time the petition for an election was filed (January 14, 1959) and
the date of the election (May 1, 1959) both Respondent and the Union distributed
handbills, circulars, throwaways, printed matter, and letters setting out the ad-
vantages of their respective sides. Respondent's printed matter also referred to the
findings of the McClellan Committee 9 with respect to the conduct of Teamsters and
officers of Teamsters and to the conduct of M. N. (Dusty) Miller, Dallas, Texas,
president of the Southern Conference of Teamsters, Dallas, Texas, and R. C. Shafer,
business agent of Local 657 of Teamsters in San Antonio, Texas. In this respect,
Respondent stated in the printed matter, among other things, that Shafer was the
one "who, witnesses testified, hired thugs to steal dynamite, to bomb buildings, to
blow up trucks and truck lines, to burn terminals, to shoot and throw rocks at
truck and truckdrivers, and to damage and destroy equipment," and that Miller held
the position as head of the Southern Conference of Teamsters when he "told Shafer
to get rough with the truck lines in San Antonio" and "when 173 separate acts of
violence were directed against a five-state area in Tennessee, Kentucky, Georgia,
Ohio and North Carolina." 10
On May 1, 1959, the day of the election and a payday, about 8 a.m., the employees
received in their pay envelopes a schedule prepared by President Linam purporting
to be what their expenses and gross pay per paycheck would be if they elected
Teamsters to represent them.
During the interim between the filing of the petition and the election, W.W.
Callan, chairman of Respondent's board of directors, and, with his family, majority
owner of its stock, and T. H. Callan, his brother, spoke to assemblies of employees.
W. W. Callan spoke to them at Dallas on February 12 and April 29, 1959, and at
Beaumont in April 1959, and T. H. Callan spoke to them at Dallas on April 28, 1959.
These speeches were along the lines of those delivered by T. H. Callan and Linam
in November 1958.
Between November 10 and December 15, 1958, approximately 40 employees sta-
tioned at the Beaumont, Wichita Falls, and Dallas terminals signed letters to the
Union prepared and mailed by James W. Carolan, terminal manager of the Beau-
mont terminal, in the case of Local 393, and Wayne McMahon, terminal manager
of the Wichita Falls terminal, in the case of Local 47, and W. C. Lackey, operations
manager of Respondent's systemwide operations, in the case of Local 745. These
letters consisted of a statement that the signatory was resigning from the Union and
revoking the authority given it to represent him as collective-bargaining repre-
sentative. They were mailed to the Union by Respondent. The 40 employees
had signed cards distributed by the Union and returned to the Union which were
jointly an application for membership in the Union and a designation of Union as
collective-bargaining representative. General Counsel contends that the signatory
employees were coerced into signing the letters by Respondent. The latter, on the
other hand, contends that at the employees' requests, it merely assisted them by pre-
paring and mailing the letters. According to Respondent, the employees repre-
sented that they signed a union card due to pressure or misrepresentation, and they
wished help in preparing letters that would revoke their applications for member-
ship and designations of collective-bargaining representative.
0 Select Committee On Improper Activities in the Labor or Management Field, U.S
Senate, S Res. 44, 86th Cong, Senator John L. McClellan, chairman
10 All the Teamsters locals engaged in organizing Respondent's employees are affiliated
with the Southern Conference of Teamsters.
' , ' CENTRAL FREIGHT LINES, INC. . ' 403
2. Facts in controversy
While the Respondent admits or leaves undisputed the events set out above, it
contests General Counsel's evidence as to certain aspects of such events, and other
conduct which the General Counsel alleges Respondent engaged in. The Trial Ex-
aminer's evidentiary findings as to the conduct in dispute are set out in the following
paragraphs. For the most part, this conduct consists of statements made in Re-
spondent's-speeches and in the conferences it had with employees, which, as the Trial
Examiner has found, took place during the period from November 1, 1958, to
May 1, 1959. Both the speeches and the conferences had a uniform pattern with
some variations.
a. The speeches
President Linam's speech at the Wichita Falls terminal on November 11, 1958,
was the earliest of the group. He began with the statement that the Union was
trying to organize the employees, that it was not good for them, and that Respond-
ent had done without it many years and could continue to do so. He referred to the
size of Respondent's business operations and to the high standards Respondent
followed with respect to its operations, establishment and maintenance of terminals,
the purchase and maintenance of equipment, and the treatment of personnel gene-
rally.u He spoke about the limitation under a union contract of a maximum of
403/4 hours employees could work at straight- time rates, with any additional hours at
time and a half. He stated that the 50 to 54 hours per week which Respondent's
employees were then working on straight time permitted Respondent to service small
communities as well as give the employees about $100 to $123 per month more than
they could earn working the 403/4 hours at the straight-time union rate. He further
stated that Respondent could not afford the union overtime rate of time and a half
for the difference between the union 403/4 hours and the 50 to 54 hours they normally
worked. The reduction in the hours worked by the employees, he claimed, would
reduce Respondent's capacity to service the smaller communities as well as reduce
the take-home pay of the employees. He also stated that the reduction in gross in-
come following the reduction in hours worked of as much as 91 hours to 131/4 hours,
would not only result in less take-home pay for employees, but also limit the funds
available for the upkeep of terminals and the purchase and maintenance of equip-
ment, and require a reduction in the number of employees. He claimed that the
rates for hauling freight to the smaller communities could not be raised as they had
to be kept in line with the rates for larger shipments. He also stated that certain
carriers had to and did curtail service to smaller communities upon signing a union
contract.
Linam announced the wage increase to the employees at the Wichita Falls ter-
minal which Wayne McMahon, the terminal manager, placed in effect a few days
later. He stated that the employees had been overlooked in terms of increases. It
was as high as 55 cents in some instances. According to him the terminal's business
had grown to a point where it was no longer a small terminal, and, as a result, the
employees were entitled to more pay, because of the increased tonnage being handled.
He further said that the employees would receive an increase whenever employees
of a union carrier received one, but that they would receive theirs 2 weeks earlier.
Linam also referred to a retirement plan. He told the employees that years before
a stock purchase plan and a group insurance plan for employees had been placed in
effect and that at that time Respondent's officials had looked to the future for the
establishment of a retirement plan. He said it had been under discussion for 18
months to 2 years. He also stated to employees that he was given to understand that
they had signed union cards which were applications for union membership and
authorizations to the Union to act as their collective-bargaining representative. He
stated to the assembled employees that McMahon, the terminal manager, would be
glad to prepare letters of withdrawal to the Union revoking the application for
membership and the designation of collective-bargaining representative if they wished
him to do so.
T. H. Callan started his talks at the Dallas terminal on November 12 and 13 with
the observation that the employees knew that the Union was trying to organize the
employees. In regard to the pension plan , he said that the only thing the Union. had
to offer was a pension plan. He then followed the pattern followed by Linam in
his remarks about pensions, and pointed out that he was a member of the Respond-
ent's committee for studying pension plans. According to him, men old enough
to draw a pension would receive it as the pension fund would not be in the hands
11 These statements were left undisputed by the Teamsters locals during the organiza-
- tional campaign.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of gangsters . He disclosed, however, that the details had not been worked out to
the point where he could state anything definite or make any promises.
He emphasized to the employees that even if a contract was signed , Respondent
would not relinquish its right to hire and fire. He further said that W. W. Callan,
Respondent's board chairman, had always said he would never sign a union contract
and would sell or shut down the business before doing so, and that he still felt the
same way.12 He spoke about the 403/4 hours a week limitation at straight-time
rates in the same manner as Linam. In regard to the withdrawal of membership
applications or authorizations to act as collective-bargaining representative, he stated
that if any of the employees wished them back, to see him, and he would be glad to
get them back for them, and that there would be no reprisals.
T. H. Callan announced in these speeches that the 66 top drivers at the terminal
would receive a pay raise that would bring their rates to $2.40 per hour, and that
the rates of the other employees would be increased in line with the increases to the
66 top employees. I credit the testimony of Robert P. Lambert that the day before
Callan's first speech, William Dougher, superintendent of the pickup and delivery
department at the Dallas terminal, and Lambert's supervisor, told him that Respond-
ent's personnel were receiving telephone calls from persons unknown who made
disparaging remarks about the hours they worked and wages they received, and that
the increases might have the effect of forestalling the telephone calls.
As previously found, Wayne McMahon, terminal manager at Wichita Falls, talked
to employees on November 10 or 11, 1958. The employees were the drivers and two
night men. He stated to the assembled employees he had heard that 90 percent of
the employees had signed membership application and union designation cards. He
asked if anyone knew anything about the rumor. No one answered. There is no
testimony as to what else McMahon or anyone else said, if anything, at this meet-
ing. McMahon spoke again to the assembled employees 2 or 3 days after Linam's
speech on November 11, 1958. He said that he was not having much success in
obtaining employees to sign withdrawal letters, that one employee had signed one.
He remarked that some of the remainder of the employees had signed the union cards.
He then stated that he would be happy to prepare withdrawal letters for those who
wished him to prepare them. Following this talk to the employees, four additional
employees asked McMahon to prepare withdrawal letters which they signed. Re-
spondent mailed a copy to the Union, a copy was sent to the Board, and a copy was
retained by Respondent.13
W. W. Callan's speech at the Dallas terminal on February 12 and the one on
April 29 at that terminal were practically the same. In addition to matters already
covered by Linam and T. H. Callan, he added that the Union's previous attempts to
organize had been a failure and that it stood for strikes and confusion. He dealt
on the percentage of gross income that was paid out for wages and salaries. In the
April 29 speech, he also informed the employees of the procedure for casting their
ballots at the election day 2 days later. He told them there would be fines, assess-
ments, fees, etc., which they would have to pay if they became union members. He
compared the gross weekly pay Respondent's top drivers were then receiving, com-
puted by multiplying their $2.47 per hour rate by 50 hours of work ($123.50), with
the gross weekly pay he claimed they would receive if the Union won the election,
computed by multiplying the union rate for drivers of $2.54 per hour by 403/4 hours
of work $103.50). He noted that the difference was approximately $20 a week or
$1,000 a year in favor of their then nonunion status.
W. W. Callan also discussed the pension plan at the April 29 meeting. He stated
that if it went into effect, as he thought it would, 2 percent a month would be taken
out of the employees wages to help finance it and Respondent would contribute a
similar amount. The employees would contribute approximately $120 per employee
a year and Respondent would match this amount by approximately $150 a year.
He further said that there would be more details by September 11, 1959, and that
the employees would be given until January 1, 1960, to think the plan over.14 There
12 T. H. Callan denied he made this statement . Bodle, Respondent ' s witness, who
testified that he was present at one of Callan 's November speeches , said he did not hear
Callan make such a statement . General Counsel's witnesses McEntire, Taylor, McCollum,
and Clay testified that he made the statement . W. W Callan, himself, was silent regard-
ing it when he testified . I credit General Counsel 's witnesses.
sa Employee Bodie's testimony , when considered with McMahon's , of a conversation they
had on the terminal dock on November 10, 1958, does not warrant the inference that the
Act was violated by McMahon in the course of the conversation
14 While W. W. Callan testified that he discussed this plan with McWilliams, an em-
ployee born prior to the year 1900 , and Linam testified that it had been discussed with
employees many times , the employees who testified , General Counsel 's witnesses and
CENTRAL FREIGHT LINES, INC . 405
was no testimony at the hearing in October. 1959 that any thing had been said about
it after April 29, 1959, and following the election in which the Union was defeated.15
W. W. Callan concluded by saying that there would be no personnel cuts , regardless
of what happened in the election.
b. The conferences
From the middle of October through November 6, 1958, James W. Carolan, ter-
minal manager at Beaumont, talked separately to 30 of the 46 employees at the
Beaumont terminal who were in the unit being organized by the Union. Carolan
told each of these witnesses that he was called into the office for a private conference
with him so that he could check his reaction to the Union. He spoke disparagingly
of the Union and dealt on the benefits the employee had received as an employee
of Respondent and forecast the economic consequences that would befall the em-
ployee and Respondent if the Union was successful in its organizational drive.
Carolan said to the employee that he was not asking him if he signed the union card,
which was an application for membership and designation of bargaining representa-
tive, but that if he did sign one or if any of his friends signed one, he could have a
letter prepared so that it would be notice to the Union that the employee wished his
card withdrawn. If an employee defended the Union or was noncommittal with
respect to his offer to prepare a withdrawal letter, Carolan would inform him that
he would talk to him again to clear the matter up. He talked to 15 employees on
November 5 and 6 who signed letters of withdrawal and to 4 employees who refused
to sign or were silent as to Carolan's offer to prepare the letter.is The employees
who signed, signed three copies. One copy was sent to the Union, one was sent to
Linam at Waco, and another was retained by Carolan. A copy was also made for the
employee.
William C. Lackey, operations manager for Respondent's systemwide unit and
formerly assistant terminal manager of the Dallas terminal , spoke to as many em-
ployees as possible in regard to the Union during December 1958. He began this
activity on or about December 15, 1958.17 He spoke to the employees in his office,
in the cafeteria, the yard, the docks, in the truck or trailer cabs, or in any other
place in the terminal where he could find them. He used a form to which he referred,
and it covered the whole gamut encompassed in the speeches of the Callans and
Linam, with the exception of reference to wage increases. Like T. H. Callan, he
stated that W. W. Callan had said that he would close down or sell the business
before he signed a contract with the Union and that he was still in that frame of
mind. He also said that if the Union won there would still remain the negotiation
of a contract which could continue for a long time. I do not credit Lackey's testi-
mony that he said Respondent would bargain in good faith. When he talked to
each employee in his office there were present on his desk letters addressed to the
Union unsigned containing the statement that the application for membership in
the Union was withdrawn and the designation of the Union as bargaining repre-
sentative was revoked. He said to the employee present in his office that he would
not ask him if he signed a union card, as it was against the law to do so, but that
he could help him to get the card withdrawn if he signed one of the letters. He
also said that there would be no reprisals if he signed a letter.l$ Eight employees
Respondent's witnesses alike, testified that they had heard nothing about the plan prior
to the organizational campaign beginning in November 1958. I credit the employee
witnesses
15 On the third day of the reopened hearing, April 27, 1960, T. H. Callan testified that
Respondent had placed in effect an employee-participating pension plan December 31,
1959, was the effective date for Respondent, and January 1, 1960, was the effective date
for the employees
18 As previously found, Carolan talked to an additional 11 employees during the 3 weeks
prior to November 6, 1958. There is no testimony as to whether or not they signed
withdrawal letters.
17 Lackey's function was to see that facilities were geared to maximum production. He
reported directly to President Linam. While he did not supervise any employees, he was
a responsible agent of Respondent and was considered as such by Respondent's officials
and employees
18 Lackey testified that the letters were prepared solely for the convenience of the
drivers and dockmen because some of them had come to him with "tears in their eyes"
and stated they had been pressured into signing the union card carrying an application
for membership and a designation of bargaining representative I find from a considera-
tion of all the testimony that he had them available for the purpose of requiring em-
ployees interviewed to sign them.
406 DECISIONS. OF NATIONAL LABOR. RELATIONS BOARD
signed the letters on December 15, 1958. They signed three copies. The original
was sent to the Union by Respondent.
c. Respondent's defense that the wage increases were not related to union activity
Respondent offered testimony intended to show that the wage increases granted
by Respondent were normal increases and unrelated to efforts to counter union
membership and activity, as General Counsel contends. T. H. Callan and Carolan,
the terminal managers of the Dallas and Beaumont terminals, admitted they were
general increases. Linam, Respondent's president, denied they were. Linam, T. H.
Callan, and Carolan could not recall a prior general increase. Carolan testified
that one 20-cent increase had been given previously at Beaumont. Both Linam and
T. H. Callan stated that the increases were designed to compensate employees for
increases they did not receive because of a suspension of increases dating from the
time of a slump in the amount of tonnage being handled, starting in the spring of
1958. According to Callan, Linam in a meeting of the board of directors at Waco
on November 11, 1958, suggested to the terminal managers that merit and step
increases be brought up to date. Linam also testified that Respondent found that
the Waco employees were underpaid due to a rapid increase in the amount of ton-
nage being handled. This situation, according to Linam, had escaped the notice of
Respondent. Carolan stated that the increases at Beaumont were necessary to bring
the wages up to the level of those paid for comparable jobs in other businesses in the
Beaumont area and comparable to the wages paid by terminals that handled the
same tonnage as Beaumont handled.
Respondent's evidence is silent as to the increases that the employees would have
received but for a slump in the tonnage handled beginning in the spring of 1958.
Linam testified that a seasonal slump beginning in October 1958, and lasting until
January 1959, should not be considered in arriving at any determination as to why
the increases in wages were given in November 1958. Respondent's officials did
not or could not explain how Respondent could hold, on the one hand, that a slump,
in tonnage handled in the spring of 1958 caused a suspension of wage increases, and
on the other hand, that the seasonal slump in tonnage handled in the fall and winter
months starting in October 1958 is not a factor to be considered in determining the
motive for the substantial wage increases in November 1958. The absence of such
an explanation is especially significant in view of Respondent's contention that the
fall and early winter slump was the justification for the terminations of employees
it made in November 1958 and January 1959, contrary to its prior practice of off-
setting a reduction in tonnage handled by reducing hours worked per employee
rather than by layoffs.19 General Counsel's position shows agreement with. Re-
spondent that the slump had no part in the determination to grant the increases.
It is based, however, on the premise that the only factor receptive to Respondent
was a purpose to defeat the Union and union activity and membership, by means
which included promises and granting of benefits such as promising and granting
wage increases, and that this purpose overrode factors which in the absence of
union and antiunion campaigns would militate against the granting of increases, or-
at least against the granting of substantial general increases, rather than merit and
step increases that could be spread into periods when the slump was over and normal
conditions prevailed.
There is no evidence to show that the increases given in February and April 1959
were anything but merit or step increases that would have been given even if union
organizational activity was absent, unless Linam's statement during the course of
his November 11, 1958, speech that wages of Respondent's employees would be
raised every time the wages of union members were raised, is considered as a con-
clusive showing that these increases were related to the antiunion efforts of
Respondent.20
d. Other alleged restraining and coercive conduct
On the morning of the election day, May 1, 1959, which was also a payday,,
employees at some of the terminals, including the Dallas terminal, received along
19 This will be discussed infra in connection with the terminations
20 General Counsel premises his allegation of withholding of a general wage increase
because of union activity and membership on the Respondent's withholding of the in-
crease from employees Leonard Francis Clay, Robert P Lambert, James W. McEntire,
and Clois G Taylor. These four employees were, allegedly, also discriminatorily dis-
charged. The withholding will be discussed, infra, in connection with their alleged
discriminatory discharges.
CENTRAL FREIGHT LINES, INC. 407
with their paychecks a schedule showing how a pickup and delivery driver's pay
would be affected should the employees vote the Union in. His purported gross
pay, charges against it for taxes and union fees, and net pay were listed. The gross
pay was $207, a charge covering income and social security taxes was $33.08, the
charge for an average first month union joining fee was $25, and a charge for a
month's average union monthly dues was $4. There was a net pay figure of $144.92,
the difference between the gross pay and the sum of the dollar charges. An item
described as "Less special assessments," followed descriptions of the other charges,
but question marks instead of a dollar amount were shown in the column in which
the dollar amounts were listed for the other charges.. The intention no doubt was
to represent that there would be special assessments by the Union but that Re-
spondent had no knowledge what they would be. The gross pay was determined
by multiplying the union hourly rate of $2 54 for a pickup and delivery driver by
811/z hours, the union biweekly hours. The figures on this schedule were by in-
ference compared with the gross pay of the top pickup and delivery drivers of $2.47
per hour multiplied by 100 hours ($247) less the deduction of $33 08 for taxes. The
net figures for Respondent's nonunion operation was $213.92.
General Counsel contends that the schedule was coercive. However, he ques-
tioned President Linam, who prepared the schedule, only on the amount of $25
shown as an initiation fee. Linam stated that it was Respondent's opinion that this
amount was a reasonable figure. Both the General Counsel and the Charging
Parties failed to produce evidence to show that the Union would charge no initiation
fee or that it would be lower than represented. The difference between the wages
for union and nonunion operation for the 2-week period was $69 in favor of the
latter. The gross income of $247 for the nonunion operation reflected the No-
vember 1958 increase of 20 cents granted at the Dallas terminal.
General Counsel produced in evidence petitions signed between January 21 and
30 by 640 employees of Respondent in the systemwide unit for which the Teamsters
locals had requested an election on January 14, 1959. The petitions read: "We,
the undersigned, DO NOT want the A.F. & L. Teamsters Union to represent
us. .. ." Jack Wylie, an over-the-road driver employed by Respondent, and other
drivers prepared the petitions. They placed them on the tables in the drivers' rooms
of many terminals. The signed petitions were filed with the Board's Regional Office
on February 3, 1959, by Wylie. There is no evidence that the Respondent had any-
thing to do with the petitions. The evidence that the petitions were left on the table
in the drivers' room of many of the terminals is not substantial enough to warrant
the inference that they were placed there with Respondent's knowledge. It is a
reasonable inference, however, that Respondent knew the petitions were on the tables
in the drivers' rooms. Wylie testified that he did his best to conceal the petitions
from officials of Respondent. W. W. Callan, Respondent's board chairman, in a
letter of general distribution to employees, dated February 11, 1959, stated, among
other things, that "We have heard that many hundreds of Central people have signed
petitions in an attempt to stop the election. We certainly appreciate this show of
loyalty and confidence that we have had.. .. " General Counsel argues that this
statement of Respondent constitutes coercion.
3. Concluding findings on evidence dealing with interference, restraint, and coercion
Premised on the above findings, I make the following concluding findings:
a. Written material distributed by Respondent: The written material sent through
the mail or otherwise distributed to employees by Respondent in opposition to the
Union's efforts to organize Respondent's employees, including but not limited to state-
ments derogatory of the Union, the Teamsters, and the officers of the Southern Con-
ference of Teamsters (supra), were expressions of opinion or statements disclosing
Respondent's disfavor toward the representation of its employees by Teamsters.
The distribution of such material was protected activity of Respondent under Section
S(c) of the Act, and within the allowable area of economic conflict between Respond-
ent and Teamsters, and, therefore, not violative of Section 8(a) (1) of the Act.
b. Economic consequences: Respondent, as I have found, stated to employees as-
sembled and in individual conversations with them (supra) that under a union con-
tract it would have to reduce to 403/4 hours the hours an employee could work at
regular rates of pay, with the immediate result of a discontinuance or curtailment
of service to small communities, the closing down of the smaller terminals, and the
forced use of rundown equipment and terminal facilities, and that such a situation
would culminate in a reduction in the number of employees and the amount of
take-home pay. Respondent represented to employees at the time it made these
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
predictions that it was able to provide service to smaller communities , operate its
smaller terminals , keep its equipment and terminals in first -class condition , and main-
tain a high level of employment and take -home pay , because of its ability to work
employees 10 to 14 hours at regular rates of pay for which under a union contract
it would have to pay time and a half or overtime rates of pay . To the Trial Examiner,
this reasoning appears to be valid from an economic standpoint . As a result, Re-
spondent's predictions of what would result from the limitation on the payment
of regular rates of pay for not more than 403/4 hours , and the payment of overtime
rates for the additional 10 to 14 hours or more , because of a union contract, were
expressions of opinion as to what economic consequences over which Respondent
had no control would flow from operation under a union contract . This conduct,
therefore, is protected by Section 8(c) of the Act, and is not violative of Section
8(a) (1) of the Act.
c. Wage increases: I have found that Respondent promised general wage increases
in November 1958 and placed them in effect in November and December 1958. I
find the promises to grant them to be promises of benefit violative of Section 8 (a) (1)
of the Act and the granting of the increases to be the granting of a benefit likewise
violative of Section 8(a) (1) of the Act. I have previously found that increases given
in the spring of 1959 were not the granting of benefits violative of Section 8(a) (1).
d. Solicitation of withdrawals of union cards which were membership applications
and designations of representative : I find that the solicitation of withdrawals of union
membership applications and designations of collective -bargaining representative
made by President Linam and Terminal Managers T. H. Callan and McMahon in
their speeches to assembled employees, and by Terminal Manager Carolan and
Systemwide Operations Manager Lackey in individual conferences with employees,
carried with them an inherent threat of reprisal and are violative of Section 8(a)(1)
of the Act. The solicitations in the individual conferences which were accompanied
by a threatening demeanor and words which conveyed a positive threat are violative
of Section 8 (a)( 1 ) for this added reason.
e. Conferences with individual employees to discuss the Union and union activity:
I find the separate conferences held by Carolan and Lackey with individual employees
to discuss the Union and union activity, at which the employees were directed to at-
tend, and in which Carolan and Lackey spoke unfavorably of the Union, were by their
very nature coercive and violative of Section 8(a)(1) of the Act
f. Statements by Respondent that the business would be closed down or sold:
I find that the statements made by T. H. Callan in his speeches in November 1958
at the Dallas terminal and by Lackey in conferences with individual employees at the
Dallas terminal in December 1958 that W. W. Callan, chairman of Respondent's
board of directors and founder of the Company, had said that he would close down
or sell the business before he would sign a union contract and that he was still of
the same frame of mind, were violative of Section 8(a) (1) of the Act.
g. Statements by Respondent designed to cause employees to disclose union ac-
tivity: I find the statements made by Carolan and Lackey in their separate conferences
with individual employees that they would not ask them if they had signed union
cards, but that if they had signed them they could be withdrawn by the signing of
the withdrawal letters prepared for them, to be unlawful interrogation within
the meaning of Section 8(a)(1) of the Act. Respondent hoped to evade the sanc-
tions of the Act by attempting to do indirectly what it knew it could not do directly.
h. Pension plan: I find the promise of a pension plan contained in the speeches of
T. H. Callan, W. W. Callan, and Linam to be promises of benefit violative of Sec-
tion 8(a) (1) of the Act, and I find the placing of the pension plan in effect in January
1, 1960, to be the granting of a benefit violative of Section 8(a) (1) of the Act.
i. Advertising an unfair labor practice: I find that the comparison between the
wages of a top pickup and delivery driver employed by Respondent with the wages he
would receive if Respondent had a union contract to be violative of Section 8 (a) (1)
for the reason that the hourly wage rate used in the computation of the wages paid
by Respondent when not operating under a union contract contained the illegal wage
increase granted by Respondent in November 1958. For the same reason, I find
violative of Section 8(a),(1), the written schedule showing the wages that would be
paid by Respondent while operating union that was contained in the pay envelopes
of Respondent employees on May 1, 1959, the day of the election. By these com-
parisons, Respondent was advertising his illegal conduct of promising and granting
wage increases to hinder or defeat the organizational activity of the Union.
j. Respondent's indorsement of employees' petition rejecting the Union: I also find
violative of Section 8(a)(1), Respondent's indorsement of the petition to the Board
signed by 640 employees stating in substance that they did not wish the Union rep-
CENTRAL FREIGHT LINES, INC. 409
resenting them. There is no evidence that Respondent had anything to do with the
distribution or signing of the petition or its transmittal to the Board. However, by its
indorsement, it in effect warned the employees who had not signed the petition to get
on the "bandwagon" else they be forgotten when the election was over, and gave
to the employees who had signed a hint that they would be rewarded if they continued
to reject representation by the Union or discriminated against if they changed their
minds.21
C. The discharges
In issue is whether Respondent, in order to defeat the Union's organizational drive
starting in November 1958, discriminatorily discharged five employees on or about
November 7, 1958, at its Beaumont terminal; four employees on or about January
6, 1959, and one employee on or about January 15, 1960, at its Dallas terminal; and
two employees on or about March 21 and 28, 1960, respectively, at its central repair
and maintenance shop for vehicles and trailers at Waco, Texas. The 12 discharges
are alleged to be violations of Section 8 (a) (3) and (1) of the Act. One of the dis-
charges is also alleged to be violative of Section 8(a) (4) of the Act. General Coun-
sel contends that the 8(a) (4) violation stems from the discharge of employee Robert
P. Lambert because he testified in the hearing on September 28, 1959, in Cases Nos.
23-CA-847 and 23-CA-872, and furnished information regarding them to the Gen-
eral Counsel.
Respondent, on the other hand, contends that the terminations at the Beaumont
and Dallas terminals and at the repair and maintenance shop in Waco were for
economic reasons, and that those selected for discharge were the less desirable em-
ployees on the basis of their employment records.
1. The discharges at the Beaumont terminal
a. The evidence that the discharges were discriminatory
Reid A. Thompson, Riley LaComb, Urban L. Miller, Jr., Doyle E. Shields, and W.
G. Swearingen, whom Respondent employed at its Beaumont terminal, were dis-
charged on November 7, 1958. Miller, Shields, and Swearingen, dockhands, were
let go when they reported for the early morning shift at or about 2 a.m., and Thomp-
son and LaComb, pickup and delivery drivers, were released when they reported for
work-Thompson at 7 a.m. and LaComb at 8 a.m. They were so notified by James
R. McConnaughey, operations manager for the Beaumont terminal.22 The time-
cards of Miller, Shields, and Swearingen were missing from the rack where they
were kept when they reported for work. Each of them asked Leslie O. Lambert, a
dock foreman then on duty, where they were. He replied to each of them that Mc-
Connaughey wished to see him in Carolan's office. The latter saw each of them in
Carolan's office. He told Shields that he was terminated because he made too many
mistakes and his production was low. He gave Swearingen and Miller the same rea-
sons when he told them they were discharged. When he stated to each of the three
the reasons for his discharge, he handed him a bank draft in the amount of wages due
less the usual deductions and less the amount owed to the credit union if any. The
drafts were prepared the evening before at 6 p.m. at the terminal . Ordinarily,
paychecks were prepared at the head office in Waco.
McConnaughey was standing near the timecard rack when Thompson reported for
work at or about 7 a.m. The latter asked him where his timecard was. It was miss-
ing from the rack. He replied by holding up the draft in the amount due him and
saying "here it is." He handed him the draft, and said to him that he was being
discharged for an accident that he had had 6 months earlier. He admitted that
Carolan had considered it nonchargeable. He said that the head office at Waco
reversed him. McConnaughey was also near the card rack when LaComb reported
for work, about 8 a.m. on November 7. LaComb asked him where his card was. It
was also missing from the rack. McConnaughey told LaComb he wished to talk to
him in Carolan's office. There he told him he was going to have to let him go
because of his percentage. When LaComb inquired as to what he meant, he said that
he had been having low production since the prior September. LaComb asked to
see the book containing the production figures, but McConnaughey replied that he
21 General Counsel alleged that Respondent threatened to refuse to bargain if the Union
won the election I find such an allegation to be unsupported by substantial evidence.
za McConnaughey 's duties were , in effect or included , those of assistant terminal man-
ager. He was next in authority to Carolan , the terminal manager.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could not show it to him 23 McConnaughey handed him the draft in the amount
due him.
LaComb, Miller, Shields, and Swearingen were in the number of 19 employees to
whom Carolan had talked on November 5 and 6, 1958, regarding the Union and
its advantages and disadvantages. They are the 4 of the 19 who refused to agree
to sign letters which Carolan said he would prepare as notices to the Umon that the
employees signing them were withdrawing the applications for membership in the
Umon and revoking the designations of collective-bargaining representative which
they made to the Union when they signed union cards.24
Thompson and LaComb were pickup and delivery drivers at the time they were
terminated. Thompson had been employed by Respondent over 3 years. LaComb's
employment by Respondent was for a period close to 4 years. They started as dock-
hands and were promoted to drivers. Thompson became a driver 4 months after he
began employment and LaComb after 1 month. Their beginning rate of pay was
$1.30 per hour. Their last was $2 per hour. They received the last increase around
January 1, 1958. They were supervised by McConnaughey, the operations director
and assistant terminal manager for the Beaumont terminal, and by the dispatchers
who assigned them the deliveries. The overall supervisor was Carolan, the Beaumont
terminal manager.
Thompson signed the union card, which was a combination of an application for
membership and a designation of collective-bargaining representative, on or about
November 1, 1958. LaComb also signed one about that time. Thompson, alone
and with LaComb and Miller, persuaded other employees to sign the union card
between the time he signed it and the date of his discharge on November 7, 1958.
LaComb also engaged in this effort during that time, working alone and with Thomp-
son and Shields.
Shields, Miller, and Swearingen were dockmen at the time they were terminated.
They had been employed about 16 months. Their beginning rate of pay was $1.30
per hour. Their rate at the time of termination was $1.70 per hour. Their last
increases were in August 1958. Shields was stripping, that is unloading incoming
freight, on the first shift beginning at 2 a.m. Miller and Swearingen were loading,
that is loading freight destined for local delivery by pickup and delivery drivers,
also on the first shift beginning at 2 a.m. Shields was under the supervision of
Leslie O. Lambert, dock foreman in charge of stripping on the first shift, and Miller
and Swearingen were under the supervision of James R. Mouchette, dock foreman in
charge of loading on the first shift. The three of them were under the overall super-
vision of Terminal Manager Carolan and Operations Manager McConnaughey.
Shields signed a union card about 3 days before he was dicharged. He talked
to fellow employees off and on the job about signing the union card. He persuaded
three to sign the card. He worked with LaComb in this union effort. Miller signed
a union card on or about November 1, 1958. He also talked to other employees
in regard to the signing of the union card. He worked alone and with Thompson and
Miller. These 3 attended a party of employees a few nights before the discharge and
persuaded 12 employees to sign. Swearingen signed a union card about 3 days
before he was discharged. There is no evidence to show that he engaged in any
union activity other than to sign the card and engage in some casual discussion with
other employees about the merits of having the Union represent them.
LaComb talked to Carolan about 5:30 p.m. on November 6, 1958. The latter,
who had called him into his office, said the guessed he knew what he was in there
for. LaComb said he did not know. Carolan then said he wanted to talk to him
about the Union. He asked the witness what he thought about it. LaComb said
that he never saw anything wrong with the Union Carolan then said that the Union
was no good, that he would rather not see the Company (Respondent) go union, as
there was no advantage in doing so. LaComb replied that there were some ad-
vantages, shorter hours and more pay. Carolan asked at this point if what Respond-
ent was offering was agreeable. LaComb replied that he did not think it was.
Carolan then discussed the economic consequences that Respondent felt would befall
2' According to Carolan and McConnaughey , Respondent. did not keep individual per-
formance records on drivers and dockmen until January 1, 1959. However, the record
shows that McConnaughey or the dispatchers kept such records on drivers and the dock
foremen kept them on the dock strippers and loaders.
24'Carolan did not talk to Thompson, the fifth alleged discriminatee, about the Union
on November 5 or 6, 1958. However , Keith Johnson , the office manager for the Beaumont
terminal, talked to him on the morning bf November 6, 1958, in the same manner as
Carolan talked to the other four. Although Johnson was not Thompson's supervisor,
I find him to have been a member of management and a responsible agent of Respondent,
and to have been acting on behalf of Respondent at the time of this conversation.
- CENTRAL - FREIGHT LINES, INC. = 411
Respondent and employees of Respondent if it went Union. They were those that
the Callans and Linam discussed in their speeches . Carolan further said that he
was not asking him if he signed a union card , but if he or any of his friends did
sign one he could have a letter fixed that would be notice to the Union that he wished
it withdrawn. LaComb did not deny or admit that he signed a card. Carolan con-
cluded by saying that he wanted to see LaComb again before the end of the week,
that perhaps the matter could be cleared up. He did not talk to hun again because
he was terminated the following morning when he reported for the 2 o'clock shift.
Mouchette told Shields about 12:30 p.m. on November 6, 1958, that Carolan
wished to see him. Carolan asked him if he knew why he was there. Shields said,
"No, sir, I don't." Carolan replied: "Well, I believe you do. You are in here to
discuss the Union. There's talk that Central might go union." He then asked
Shields to state what the Union could offer him that he was not being offered by
Respondent or what Respondent could not offer him. Shields replied that the Union
could obtain less hours and more pay. After some figuring, Carolan agreed that that
was so. He claimed that Shields was the only employee that would so benefit. Then
he made statements as to the disadvantages of going union . He then said he was not
going to ask him if he signed a Teamsters ' card but that he could obtain a letter for
him to the Union in case he wished to withdraw from it. He looked at Carolan for
a few minutes and Carolan looked back gat him. Carolan then said that that was all.
Shields returned to spotting trailers. As found, his services were terminated the
following morning at 2 o'clock, when he reported for the first shift.
About 11:30 a.m. on November 6, 1958, Mouchette told Swearingen that Carolan
wished to see him in his office. Carolan asked him if he knew why he was there.
When Swearingen said no, Carolan said he was there to talk about the Union. In
response to an inquiry as to how he felt about the Union , Swearingen replied that he
was of the opinion that 80 or 90 percent of the workers at Port Arthur, and at all
the refineries , were union workers. He also said that membership in and represen-
tation by the Union would mean more money and less hours of work. Carolan
replied that he did not want any union or anybody else coming into the terminal
and telling him how much he could pay the men, and how many hours they could
work. Carolan pointed out the advantages of being nonunion and the disadvantages
of being union. Carolan said to Swearingen that he could sign a letter containing
the statement that he wished to withdraw his application for membership in the
Union and revoke his designation of the Union as collective-bargaining representa-
tive. He further said that he did not know for sure whether Swearingen had signed a
union card, but that he had a letter of withdrawal on his desk, and if Swearingen
wished he could fix it up so it would be applicable to him. Carolan concluded by
saying that he would give him an opportunity to make up his mind, and would call
him back to the office the next day. As the Trial Examiner has found, he was ter-
minated at the beginning of the first shift the next morning which was. about 2
o'clock.
Miller talked to Carolan about 10:30 or 11 a.m. on November 6. Mouchette
came to the dock where he was loading and told him Carolan wished to talk to him.
When he went into Carolan's office, the latter told him that he called him in so that
they could talk about the Union. When Carolan asked him what he thought about
Central going union, he replied that he though it would be a good thing. Carolan
then said he had not slept well since he had heard the employees were signing union
cards. He wanted to know what the Union could offer, and Miller replied better
pay and less hours of work. Carolan said he did not want the Union telling him
what he could do and could not do, and how long he could work a man. He then
told Miller that he was not going to ask him if he signed a union card, but that he
could have a letter prepared for him to the Union requesting the withdrawal of the
card if he had signed and sent one. Miller asked Carolan to give him some time to
think over his offer to prepare a withdrawal letter. Carolan replied that he would
talk to him again on Saturday morning. As the Trial Examiner has found, he was
terminated the following morning at 2 o'clock.
Around 8 a.m. on November 6, 1958, Office Manager Keith Johnson approached
Thompson on the dock where the latter was preparing his truck for a delivery, and
asked him how he felt about the Union. Thompson replied that he thought the
Union was a good thing, that it would raise his pay and cut his hours, and give him
other fringe benefits including a retirement plan and company-paid insurance.
Johnson replied, "I sure hate to hear you talk that way." Johnson, like Carolan,
then stated what purportedly would happen if the employees voted the Union in.
He was of the opinion that there would be a cut in the payroll because it would be un-
profitable to handle some of the commodities they were handling. Thompson replied
that if Respondent could not handle those commodities and pay union scale to its
drivers, who were as good as union drivers , Respondent should stop handling them.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 6, 1958, about 5:30 or 6 p.m. W. W. Callan, the board of directors'
chairman, paid a visit to the Beaumont terminal . Shortly thereafter, the bank drafts
that were handed to the five alleged discriminatees the next morning were prepared.
When McConnaughey informed Thompson on the morning of November 7 that
he was being terminated for an accident he had on April 29, 1958, 6 months earlier,
Thompson protested that the accident was nonchargeable. McConnaughey replied
that the Beaumont terminal had wanted it that way and had reached such a determi-
nation, but that the head office at Waco had reversed it. The Beaumont office as
well as the safety department at Waco had held that the accident was due to faulty
brakes. President Linam reversed this determination on May 15, 1958, holding that
Thompson was responsible for the accident. He had run into the vehicle in front of
him. Carolan, in the accident report to the Waco office, stated, "I can not determine
any negligence on the part of the driver." He also stated therein, "This driver is
superior in all respects," and "this is a very careful and defensive driver. There are
no corrective measures necessary with him as he is very analytical in his work."
Although President Linam instructed Carolan on May 15, 1958, to observe Taylor's
attitude and driving practices, he did not even bother to inform Thompson that he
had been held responsible for the accident by the Waco office. Thompson had first
knowledge of the Waco office action the day he was discharged. For the 6 months
from the date the accident occurred on April 29, 1958, the safety board in the
drivers' room showed the accident as nonchargeable.
When McConnaughey told Miller on November 7 that he was being discharged
because his production was low and he had made too many mistakes, Miller asked
him why he had not said anything to him about his production being low. McCon-
naughey replied that he had never come to see him about it. McConnaughey testi-
fied that he told each of the five employees discharged that the principal reason for
the discharge was an economic one, that there had to be a reduction in the number
of employees for economic reasons. Each of the five employees were definite in their
denials that economic reasons were mentioned. On cross-examination, McCon-
naughey appeared uncertain as to what extent he mentioned economic cutbacks as
the reasons. He admitted that the reasons were given to him orally by Carolan,
that he made no recommendations to Carolan with respect to the discharges nor
discussed them with Carolan, and that he acted on the morning of November 7 pur-
suant to Carolan's instructions. I credit the testimony of the five employees that
McConnaughey did not state to them when they were discharged that they were
being let go for economic reasons.
In April 1959, Respondent's counsel requested Terminal Manager Carolan to
reduce to writing his reasons for the discharges of November 7, 1958. Carolan, who
preceded McConnaughey on the witness stand, stated that the reasons he reduced
to writing pursuant to counsel's request were the reasons he gave McConnaughey
for the discharges when he requested him to give notice to the employees to be dis-
charged. For Thompson, they were a general reduction-in-driver force; Thompson's
accident of April 1958 which Carolan had previously considered nonchargeable to
Thompson; two complaints about Thompson's driving within 2 or 3 months prior
to the discharge; failure to follow company procedures in reporting errors to dock
foremen when stripping and loading freight; and complete absence of any sales tips.
For LaComb, they were an economic reduction-in-force, failure to follow company
rules in regard to reporting dock shortages to the dock foreman when stripping or
loading tractors and trucks; arbitrary conduct with the dispatcher when assigned to
drive other and older types of equipment, and very few sales tips.
For Shields, they were a general reduction-in-force due to economic factors;
misloading, crossloading, failure to load, and many other mishandlings that cost
time to straighten out and which damaged customer relationships; failure to report
overages, shortage, and damages to the dock foremen before loading shipments;
his suspension in April 1958 for a minimum of 2 years from driving; and failing
to meet production standards. For Miller, they were a general reduction-in-
personnel for economic reasons; misloading and failure to handle freight in accord-
ance with company procedure; refusing to confer with dock foremen before loading
shipments in regard to overages, shortages, and damages ; and failing to meet pro-
duction standards at all times. For Swearingen, they were a general reduction-in-
force; laxity in following the Company's rules regarding the handling of freight;
misloading and mishandling of freight and failure to load bobtails (four-wheel
trucks); and failure to maintain production standards.
b. Respondent's econom.-c defense of the discharges
Respondent takes the position that the tonnage being handled determines the need
for man-hours. It relies heavily on a seiies of memorandums from President Linam
CENTRAL FREIGHT LINES, INC. 413
to terminal managers and other executive personnel regarding tonnage and reve-
nue, dating from October 11, 1957, up to and including January 12, 1959, to show
that in the period usually starting in October up to and including January of the fol-
lowing year there is a seasonal drop in the tonnage offered Respondent for handling,
that Respondent has always responded to this economic problem by diligently seeking
to reduce man-hours , and thirdly, that in terminating Thompson , LaComb , Shields,
Miller, and Swearingen, Carolan acted in accordance with this policy clearly ex-
pressed in Linam's memorandum of October 14, 1958, to terminal managers and
other executive personnel.
This evidence supports Respondent's position that there is a seasonal slump system-
wide in tonnage offered and handled in the months of November and December
as compared with preceding months.25 It also supports Respondent 's position that
President Linam keeps terminal managers periodically informed by memorandums
of the volume of tonnage being handled and the revenue being received and issues
instructions to them with respect to terminal operations premised on the tonnage
being handled and the revenue received, including the instruction that man-hours
should be reduced to offset a reduction in the volume of tonnage. The only issue is
whether Carolan had a clear directive to reduce the number of driver personnel,
based on business conditions only, in the memorandum of October 14 and acted
only pursuant to that directive.
It appears clear from Linam 's memorandums , up to and including the one issued
October 13, 1958, that reduction in man-hours meant reducing the hours worked
per employee and not terminating employees.26 By way of background, Thompson's
testimony that Respondent always spreads the work when tonnage was down is un-
disputed. Moreover, on March 31, 1959, the day before the Board election, Re-
spondent distributed a "throw-away" containing quotations of statements of em-
ployees about the advantages of working for Respondent, and one of the quotations
in substance was that when "freight is bad," Respondent spreads the work out, "there's
no layoff." Respondent's average workweek of 50 to 54 hours per employee permits
it to cut back these hours as far as the 403/4 hours worked under union contracts. In
the January 10, 1958, memorandums , Linam instructed the terminal managers to
reduce man-hours and not to start adding people. This would indicate that adding
or subtracting employees was in a different category than reducing man-hours.
Linam in his March 12, 1958, memorandum stated that extra people had been
added with the expectation of a tonnage increase that was not materializing, and
then stated that there should be a "cutting back to the proper employee level." He
then stated, "I hate to enter into this type program but we must for self preservation."
Here he clearly indicated that reducing the number of employees was not a customary
procedure, and he was clear in his language when he referred to a reduction in the
number of employees.
Although in the memorandum of October 13, 1958, Linam referred to cutting back
man-hours,27 in the memorandum of October 14, 1958, the following day, he stated,
"I am going to ask that your personnel be cut back in accordance with a decline in
business which certainly should be at least a 10go cutback." He had preceded this
statement with a pessimistic forecast of substantial losses in tonnage and revenue
as compared to the previous month of September 28 There is an ambiguity in the
language "your personnel be cut back." Does it mean a reduction 'in man-hours
as The series of memorandums refers to losses in revenue and losses in tonnage system-
wide. The term losses refers to a decrease in the volume of tonnage or a decrease in
revenue from that of the previous month. The loss in revenue does not necessarily indi-
cate a real loss, that is costs in excess of revenue.
' Respondent relies on memorandums issued in the early part of a month forecasting
reductions in tonnage and revenue . It failed to include in the series the memorandums
which show the actual tonnage and revenue for the months for which the pessimistic
predictions were made For example , President Linam in his memorandums s -of October 13,
14, and 29, 1958, covering that month up to October 23, forecast substantial reductions in
both tonnage and revenue for that October for the whole system as compared to tonnage
and revenue for the prior September . There is no memorandum disclosing the actual
figures for that month. However, other evidence, including evidence of Respondent,
shows that the Beaumont terminal handled 755 ,810 pounds more freight in October 1958
than it did in the prior September
27 He said, "I am going to ask that upon receipt of this letter each of you begin having
meetings, and you are to cut back the man-hours . Many of our terminals are running
far in excess of the number of man-hours required "
28 As stated supra, footnote 26, there is no memorandum showing what the actual
tonnage and revenue were for October 1958.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
per employee or a 10-percent reduction in the number of employees? 29 Carolan
contends, on behalf of Respondent, that in the layoffs of November 7, 1958, he com-
plied with a directive to reduce the number of personnel by 10 percent contained
in the memorandum of October 14, 1958, of which he, Carolan, was reminded by
W. W. Callan in their conversation at the Beaumont terminal at or about 6 p.m. on
November 6, 1958., According to Callan, he was informed by Linam the morning
of November 6, 1958, that Carolan had failed to make the reduction in the number
of personnel as required by the October 14, 1958, memorandum, and he felt that he
should fly over to Beaumont and talk to Carolan about it.
Assuming arguendo for the moment, that the Respondent's position as to the
meaning of the October 14, 1958, memorandum has merit, Respondent by reliance
on it to support its position that the terminations were for economic reasons, dissipated
its defense. Its own evidence shows that the tonnage handled by the Beaumont
terminal during the month of October 1958 was not substantially less than the ton-
nage handled in September 1958, as Linam's dire forecast indicated it would be on
a systemwide basis, but that it exceeded the September 1958 tonnage by 755,810
pounds. Moreover, General Counsel's evidence shows that for the first full week
of November, the tonnage handled was as high as the best week in October 3o It is
reasonable to assume, and I so find, that W. W. Callan had this knowledge when he
talked with Carolan on the evening of November 6, 1958. There is no doubt what-
ever that Carolan had such knowledge at that time. Mouchette testified that when
Miller and Swearingen were terminated, he had to do the work of a loader, and that
he and the two remaining loaders under his supervision had to make up for the loss
of man-hours resulting from Miller's and Swearingen's terminations.
I also find at this point that the memorandum of October 14, 1958, insofar as it
referred to cutbacks would, standing alone, have been construed by the terminal
managers as an instruction to reduce man-hours of work per employee by 10 percent
and not to reduce the number of employees by 10 percent as Respondent contends,
except when it was accompanied by intervening events such as the conversation W. W.
Callan had with Carolan on the evening of November 6, 1958. There is no
evidence that the tremendous capacity Respondent had to reduce man-hours sched-
uled to be worked by each employee had been exhausted even in part. The October
14, 1958, memorandum indicates that it had not. There is no evidence that any
of the other terminals released any employees in October, November, or December
1958, pursuant to the October 14 memorandum.
The Respondent's position also lacks strength because of Linam's position that the
increases in wages granted in November 1958 had no relationship whatsoever to the
financial position of Respondent. The Callans, -Linam, and Carolan took the posi-
tion that wage increases in general were suspended in the spring of 1958 because of
a slump in tonnage being handled. In his memorandum of December 18, 1957,
Linam directs attention to the fact that salaries, including wages, took up 55.23 per-
cent of the revenue. In the February 10, 1958, memorandum, Linam, in the course
of congratulating executive personnel on the very successful month of January
1958, complimented them on keeping salaries down to 50.05 percent of the revenue.
In the January 12, 1959, memorandum, Linam advised that the increased cost of
salaries due to "new salary scales" would have to be offset by more production
per employee. It appears clear that financial condition and volume of business in
normal circumstances were equally close to both wage changes and increases or
decreases in the number of employees. It does not appear that in normal circum-
stances, Respondent would have increased wages if the financial aspects of its busi-
ness operations or its volume of business required a reduction in personnel, or would
have reduced the number of employees or make employees jobless if the financial
aspects of its operations and volume of business permitted it to increase wages.31
For the reasons stated, I now find that Respondent's economic defense is not sup-
ported by substantial evidence.
3 The four memorandums following the one dated October 14, 1958, do not help The
one dated October 17, 1958, refers only to "cut-backs," the one dated November 14, 1958, is
silent as to this matter The January 12, 1959, memorandum has the language "to cut
back a lot of people "
30 Respondent's counsel argued in his brief that it is the less-than-trailer-load (LTL)
tonnage that determines the need for man-hours in the pickup and delivery department
and on the dock The LTL tonnage for October was 258,626 pounds higher than for
September and this tonnage for the first week in November was higher than such tonnage
for any week in October
al There is no evidence that competitors were raiding Respondent's personnel because
of the wages it was paying.
CENTRAL FREIGHT LINES, INC. 415
c. Respondent 's other defenses of the discharges
As previously found, Carolan had decided that Thompson was not responsible
for the accident in April 1958, but was reversed by the head office at Waco. He did
not consider it necessary to bring the reversal to the attention of Thompson. The
latter denied to Respondent that he was involved in or responsible for the incidents
reported in complaints of two other accidents against him. In view of his denials no
action had been taken or contemplated against him by Respondent. At the hearing,
counsel for Respondent offered to stipulate that the accident Shields had when he was
a driver had nothing to do with his discharge.
No evidence was offered to support Carolan's contentions that employees Thomp-
son and LaComb had refused to obtain any sales tips. On the other hand, there
is the testimony of Thompson and LaComb that when they received step or merit
increases they were commended for the good job they were doing, with a friendly sug-
gestion added that they should make an effort to furnish more sales tips. Neither
Carolan nor any of his executive personnel ever stated or even intimated that the
furnishing of sales tips was a condition precedent to staying on the job . Respond-
ent employed salesmen, covering at least every major route, who had only the one
task of getting business.
Carolan's reasons of misloading , crossloading , and overloading freight and failure
to notify the dock foreman properly or correctly with respect to errors involving
overages , shortages , and damages , were based on entries made on Thermofax copies
of freight bills or bills of lading. These copies were kept in connection with a train-
ing program conducted for the benefit of drivers and dockworkers at the Beaumont
terminal. The theory was that the efficiency of these employees could be improved
by pointing out to them things they did not do but should have done, or things they
did but should not have done. After the errors were pointed out to the employees,
the copies were placed in the employees personnel folders. The purpose was to
improve efficiency, not to have a basis for reduction in personnel. The supervisors
who kept a check on the dockworkers in connection with this program were dock
foremen, Lambert in the case of strippers and Mouchette in the case of loaders. The
program was under the overall supervision of McConnaughey and Carolan.
Lambert and Mouchette could not recall speaking to Shields, Miller, and Swear-
ingen 'about errors disclosed on the Thermofax copies. The three employees denied
that they were ever reprimanded with respect to such errors. They readily admitted
that they were brought to their attention. They further denied that they were ever
spoken to individually about low production. They did testify, however, that at
times Mouchette and Lambert would speak to .the employees as a group in an effort
to stimulate production and that they were in those groups. Moreover, Carolan,
McConnaughey, Mouchette, and Lambert admitted that the Thermofax copies for
each dockworker were not examined prior to the discharge to find who had the
most mistakes.32 The record only discloses that there were Thermofax copies of
freight bills or bills of lading showing errors in the personnel folders of Shields,
Miller, and Swearingen, that their files were examined for these Thermofax copies,
and that they were offered in evidence to justify the discharge 33 It is not clear from
the evidence to what extent, if any, Shields, Miller, and Swearingen were properly
charged with the errors shown on some of the Thermofax copies. The stripper,
loader, or driver, or all, could be responsible for the error if one was actually made.
Mouchette testified that the day before he testified he brought errors to the attention
of each one of the five dockworkers working as strippers, that errors were to be
expected, and that the objective was to reduce them to the minimum. Sixty-one
freight bills or bills of lading were offered by Respondent as records of errors made
by employees LaComb, Shields, Swearingen, and Miller. However, only the four
purporting to show LaComb's errors were adequately explained. Only one of these
82 This admission becomes significant when considered with the undisputed evidence that
Welburn, a pickup and delivery driver, had been warned twice prior to November 6, 1958,
for being under the influence of alcohol , and had to be let go on November 8, 1958, for
being in such a condition. It is also significant that 4 of the dischargees were the
4 of the 19 interviewed on November 5 and 6, 1958, by Carolan who refused to sign
withdrawal letters prepared by him, and that all of the 19 had signed union cards.
s3 An issue is whether the errors shown on the Thermofax copies were relied on by
Respondent when he selected the dock employees for discharge on November 6, 1958, or
whether they in fact were resorted to in April 1959 and thereafter to support the reasons
for discharge Carolan stated in writing in April 1959 at the request of Respondent's
counsel.
416 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
four showed an error for which LaComb was responsible.34 Another reason for
discharge stated by Carolan in his testimony is not supported by evidence. It is his
statement that LaComb engaged in arbitrary conduct with dispatchers when assigned
to drive older equipment and equipment other than what he customarily drove. Mc-
Connaughey could not recall talking to LaComb about arbitrary conduct with dis-
patchers. On the other hand, LaComb was commended by Carolan in meetings
held by Carolan and other executive personnel with employees for the condition in
which he kept his equipment.
For the reasons stated, I now find that Respondent's reasons for the discharges at
the Beaumont terminal other than the economic reason are likewise not supported
by substantial evidence.
d. Concluding findings on the evidence dealing with the discharges at the
Beaumont terminal
I have found that on November 7, 1958, Respondent ^ discharged employees
Thompson, LaComb, Miller, Shields, and Swearingen. They were employed at
Respondent's terminal in Beaumont, Texas. I have found that on November 6,
1958, Carolan, the terminal manager, talked to each one of these employees except
Thompson with the objective of soliciting him to sign withdrawal letters he had
prepared and which were designed to revoke his application for membership in the
Union and his designation of the Union as collective-bargaining representative.
Each of these employees refused to sign the withdrawal letters on the ground that
he had not signed the union card which was an application for membership in the
Union, and a designation of the Union as collective-bargaining representative. I'
have found that 15 others were likewise solicited on November 5 and 6 by Carolan,
and that these employees agreed to, and did, sign the withdrawal letters. I have
found that Keith Johnson, the officer manager, interrogated Thompson about the
Union on the morning of November 6. I have found that Thompson and LaComb
had been employed approximately 3 years, and that Shields, Miller, and Swearingen
had been employed approximately 16 months, that each one of the four who talked
to Carolan on November 6 defended the Union, as did Thompson in his conversa-
tion with Office Manager Johnson, that each of the five had signed the union card
which was an application for membership and a designation of representative, and
that except for Swearingen, each one of them had engaged in organizational activity
on behalf of the Union.35
I now find that Carolan knew on the evening of November 6, 1958, when he
talked to W. W. Callan at the Beaumont terminal that the five employees discharged
had signed union card's by reason of the statements four of them had made to him
on November 6 and the statement Thompson had made to Office Manager Johnson
on the same date about the Union. This knowledge also flowed from the refusal
of the 4 to whom he talked to sign withdrawal letters in contrast to the willingness'
of the other 15 employees to whom he talked on November 5 and 6, 1958, to sign
the withdrawal letters.
I have found supra that Respondent has not proved that the terminations were
for economic reasons or for cause.
For these reasons, especially when considered against the background of Re-
spondent's obvious antiunion animus, I conclude and find that Respondent dis-
criminatorily discharged Thompson, LaComb, Shields, Miller, and Swearingen in
violation of Section 8(a)(3) and (1) of the Act. I am also persuaded in making
this finding by the facts that Carolan in his conversations with the four employees,
LaComb, Shields, Miller, and Swearingen, on November 6, the day preceding the
discharges, dealt only with the Union and union activity and made no reference to
their discharge for economic reasons or for cause, or any possibility thereof, and,
moreover, clearly disclosed that the signing of the withdrawal letters, by which they
would disassociate themselves from the Union, was of such importance to him that,
he intended to keep pressuring them until they yielded.
2. The discharges at the Dallas terminal
James W. McEntire, Clois Glenn Taylor, Leonard Francis Clay, and Thomas L.
McCollum, whom Respondent employed at the Dallas terminal, were discharged
e! As found, supra, errors could be committed by the stripper, loader, or driver, or all,
on one transaction
85Each of these employees claimed, and I so find, that he denied to Carolan on Novem-
ber 6, 1958, that he signed the union card for fear he would lose his job if be disclosed to
Carolan that he signed it.
CENTRAL FREIGHT LINES, INC. 417
on January 6 , 1959 , and Robert P. Lambert , also employed at the Dallas terminal,
was discharged on January 15, 1960.
a. The evidence that the discharges on January 6, 1959 , were discriminatory
When McEntire and Taylor, local pickup and delivery drivers, reported for work
at 9 a.m. on January 6, 1959, Tabor , the dispatcher , told each of them that
Dougher, superintendent of the pickup and delivery department , wanted to see them
in Lackey 's office. They went to Lackey 's office together . Dougher was already
there. He told both of them that he had let them go because of their attitude
toward Respondent . Taylor replied that it was peculiar that after being employed
by Respondent 11 years, his attitude turned sour overnight . In response to a state-
ment by Taylor that McEntire 's work and his work were as good as anybody else's
Dougher replied that their work was up to par . McEntire and Taylor then left.
When Clay, also a pickup and delivery driver, and McCollum, his helper, returned
from lunch about 1 p.m. on January 6, 1959, Tabor, the dispatcher , told Clay that
Dougher wished to see him . Clay went into Dougher's office and McCollum waited
for him . Clay returned in 5 to 10 minutes and told McCollum that Dougher wished
to see him. McCollum then had a conversation with Dougher.
Dougher in his conversation with Clay told him that he had to let him go because
of his attitude . When Clay asked him what was wrong, with it , Dougher replied
that if everyone knew him as he did , everything would be all right . He said he
meant the people all around. He then said that someone had called that morning
and asked that Clay ' not ' be sent to his place of business anymore with freight. He
would not disclose who it was that called . He told him that he did not think he
liked his job. Clay answered that he thought he was being let go because of his
union activities . Dougher then came back with the statement that the volume of
tonnage being offered Respondent was "down " After telling Clay that Respondent
did not lay off according to seniority , that he was sorry he had to let him go but
the order to do so came from higher up, he told him he would give him a recom-
mendation . Dougher told McCollum in their conversation that he had to let him
go because tonnage was down . He further said to him that if he needed a recom-
mendation he would be glad to give it to him . McCollum asked Dougher if he
could come back at any time. Dougher said he did not think so.36 Clay and
McCollum talked to Tabor, the dispatcher , shortly after their discharges. He was
amazed when Clay told him that they had been laid off. He said to both of them
that he would put them against any two men employed at the terminal. He told
each of them that he would give him a recommendation if he needed one.
McEntire had been employed by Respondent approximately 7 years, Taylor
approximately 11 years, Clay approximately 2 years, and McCollum approximately
11/2 years. Each of them signed a union card just prior to the beginning of the
Union 's organizational activity on or about November 3, 1958 . Up to the time of
the general pay raise on November 28, 1958, McEntire , Taylor, and Clay were
receiving top pickup and delivery pay. It was approximately $2.20 per hour until
the raise . McEntire and Taylor did not receive any raise on November 28, and
Clay received only a partial raise. As will be seen infra, McEntire received the
increase and Clay the part that was missing only after intensive efforts to obtain
them. Taylor did not receive the increase . He abandoned the effort after Dougher
refused to help him.
McEntire talked to employees at or in the vicinity of the terminal in connection
with the Union's organizational activity starting on or about November 3, 1958.
He was not successful in persuading anybody to sign a union card . Taylor talked
to Dock Foreman Al Brad on or about September 1, 1958. H told him a union
was badly needed in the plant . Brad shrugged his shoulders and walked off. He
talked to Vestal about the Union around January 1, 1958. He told him the em-
ployees needed a union in order to get a break for a change. Vestal walked off
without saying anything . He talked to Stapleton , a route clerk, about December 15,
1958, in the main office when Vincell37 and Dougher were standing across the
room in front of Dougher's desk . He asked Stapleton if he was going to be a
driver when Respondent went union. Stapleton replied that Taylor was crazier than
he thought . Taylor talked to approximately 90 percent of the employees at the
Dallas terminal about the Union . He told them in the course of the conversations
88 Both T. H Callan and Carolan testified that they would not reemploy any of those
discharged at the Dallas and Beaumont terminals
Clarence Vestal and Earl H. Vincell were route supervisors
624067--62-vol 133-28
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the job steward at D. C. Hall Motor Line would sign them up. When Taylor
told Vincell he had been discharged shortly after being so informed by Dougher,
Vincell replied that if he had done to Respondent what he, Taylor, had done he
would not want to remain as an employee of Respondent. I find that Vincell was
referring to Taylor's intensive organizational activity on behalf of the Union.
McCollum talked to other employees about the Union and gave them union cards.
One was returned signed . The evidence does not disclose that Clay engaged in any
union activity prior to his discharge other than signing a union card.
When McEntire did not receive the general pay raise in his paycheck on Novem-
ber 28, 1958, promised by Callan in his speeches on November 12 and 13, 1958,
he asked Dougher to help him obtain it, but Dougher did not agree to help. He
then asked Jimmy Gerald, the salesman for his route, to help him. Gerald talked to
T. H. Callan about it. McEntire's check on December 12, 1958, contained the in-
crease. It was shortly, thereafter, December, 15, that Lackey called him to his
office for the first of two talks about his union activity. The two talks will be dis-
cussed infra. Clay received only 10 cents of the promised raise. He spoke to
Dougher about it. Shortly before Christmas Day he received the rest of the general
raise promised. On or about December 17, 1958, when Dougher informed him he
would get the remainder of the raise, he told him that he deserved it, that he was a
good man. At this time, Dougher also told him that Lackey wished to see him in his
office. This conversation also dealt with the Union's organizational activity and is
discussed infra. McCollum received a 15-cent raise in the paycheck he received on
November 28, 1958. This was apparently the amount of the general raise for his
position as helper obtained by an adjustment from the 20-cent raise for the top 66
drivers employed at the terminal. T. H. Callan had stated on November 12 and 13
that that was the way it would be given. When Taylor did not receive an increase
on November 28, 1958, he asked Dougher why he did not receive it. Dougher
told him to ask T. H. Callan. Taylor replied to Dougher that he saw no reason
to ask him since he had been promised it 2 or 3 weeks before.
Operations Manager Lackey had McEntire come to his office at the Dallas ter-
minal on the morning of December 15, 1958. After asking McEntire how he was
getting along, and if everything was all right, Lackey said that what he wished to
talk to him about was a letter he would like him to sign . It was one of the letters
providing for the withdrawal of an application for membership in the Union and of
the designation of the Union as bargaining representative. As previously found,
employees had signed a union card providing for these two things. McEntire re-
plied that he did not wish to sign the letter as he had not signed the union card.38
Lackey told McEntire that T. H. Callan had told him that he had signed the card.
Lackey then said that he might as well sign it as Respondent was going to find out
whether or not he signed the card as the Board was going to turn over to Respondent
the names of all employees'who signed the union cards .39 McEntire appeared in
Lackey's office the next morning pursuant to the latter's request. Lackey said that
he had been thinking over a lot of things about him the night before, and had lost a
lot of sleep over such thinking. He then said he believed that McEntire had signed
a card. McEntire again denied he signed a card. He said to Lackey that he told
his story "yesterday" and that he was going to stick to it. Lackey then told him he
could go
Clay was one of the employees Lackey talked to in his office in the Dallas ter-
minal. This conversation took place on or about December 17, 1958.40 He told
Clay that it would be against the law if he asked him if he had signed a union card.
He said he had a retraction letter ready whereby Clay could withdraw the appli-
cation for membership and designation of representative he had made if he signed
the union card. Clay denied he signed one.41 This was one of Lackey's conver-
sations during which he said that W. W. Callan had said that he would sell the line
before he signed a collective-bargaining contract. He also asked Clay how he felt
about the Union. Clay replied that he would not cross a picket line. Lackey then
dwelt on the disadvantages that would flow from the selection by the employees of
the Union as their representative.
m McEntire testified that he had signed the union card but was afraid to admit to
Lackey that he did for fear be would lose his job
39 The letter that Lackey asked McEntire to sign was one of several copies in one pile
on his desk
40 There is no evidence that Lackey talked to Taylor like he talked to McEntire,
McCollum, and Clay
41 At the hearing Clay admitted he signed a card but testified that he made the denial
because of fear of losing his job if he disclosed he signed it.
CENTRAL FREIGHT LINES; INC. 419
About the last of November or first of December 1958 , employee McCollum , Clay's'
helper, was asked by Tabor , the dispatcher , to report to Lackey 's office. He re-
ported to Lackey 's office and had a conversation with him. Lackey likened a job to
playing cards, saying chance was involved . He told McCollum that it was against
the law for him to ask him if he had signed the union card , but that if he had there
was a retraction slip he could sign to get it back . McCollum denied he signed one.
Lackey also said that W. W. Callan would close the business or sell it before he did
business with the Union . When McCollum said he did not know much about union
activity , Lackey stated that there would be an election conducted by the National
Labor Relations Board, and that there would be a secret vote by ballot . He then
told McCollum to vote "no." Lackey also stated that one man was being laid off
because of his attitude.42
On November 13, 1958 , Earl Vincell , McEntire 's route supervisor , met him on the
route when he stopped for coffee . Vincell asked him how he liked T. H. Callan's
speech of November 12 and the pension plan he referred to in the speech. McEn-
tire replied that he thought they were all right if he went through with them. Vincell
thereupon said that he had come to see him because T. H. Callan had his name on a
list of those who had signed union cards. Vincell further said that if McEntire had
not signed a card he had better tell Callan , and that if he had , they sure would hate
to lose him because he had been a good hand . McEntire replied that he would see
Callan. He went to Callan 's office the next morning and spoke to him . He told him
that Vincell had said to him that he had his name on a list of those who had signed
a union card . Callan said he did not have a list, but had heard that he had signed a
card. McEntire denied he signed a card . 43 Callan then replied that he was glad
that he did not sign one . McEntire also told Callan that he intended to buy some
company stock . Callan said he recalled McEntire mentioning it sometime before.
McEntire then said he probably would not want it if the employees voted the Union
in. During the next few days, McEntire had another conversation with Vincell. He
told him that he had talked to T. H . Callan . Vincell replied that Callan had told
him he had , and he was glad that he had, but also said that Callan was "torn up"
because he did not ask him to get his application back for him 44 As previously
found , McEntire did not receive the general pay increase promised for November 28,
1958, until he talked to Jimmy Gerald, the salesman for his route, and he interceded
for him with T. H. Callan and persuaded Callan to give it to him.
About 3 or 4 weeks after his discharge , McEntire hauled freight to Respondent's
Dallas terminal for East Texas , another carrier . While at the terminal, he met
Tabor, the dispatcher . Tabor said to him that he hoped that he did not think
that he had anything to do with his discharge . He further said that he would be glad
to recommend him to anybody he could, and would be glad to help him get a job.
On January 9, 1959 , McEntire also talked to Jimmy Gerald when he was driving for
Respondent . Gerald said to him that he had not known what happened , that during
his 6 years of employment , he, McEntire , had done a good job. He also said he
would be glad to give him a recommendation or any help he could.
Clay talked to Lackey at the dock of the Dallas terminal in April 1959 . Clay was
interlining freight with Respondent for one of the carriers he worked for as a casual
driver after he was discharged . Lackey asked him if he had heard anything. Clay
replied that he had not, and added that he thought he had been given a "dirty deal."
Lackey then said that he had nothing to do with the firing, that he was not even in
town . He claimed it was a complete surprise to him . He added that if Respondent
went union he would be one of the first ones to be taken back . Clay asked him what
would happen if Respondent did not go union . Lackey's answer was that he would
talk about that later.
b. Respondent's economic defense of the January 6, 1959, discharges
T. H. Callan , the Dallas terminal manager , testified that McEntire , Taylor, Clay,
and McCollum were discharged for economic reasons.
Jn support of this defense , Respondent 's evidence shows that the historical seasonal
drop in tonnage volume began in November and continued through December 1958.
49 There is no evidence that Taylor was interviewed by Lackey as were McEntire, Clay,
and McCollum
48 McEntire testified that he denied signing a card , although he had signed one, because
he feared-he would lose his job if he admitted doing so
44 As previously found , T H Callan in his November 12 and 13 speeches offered to have
the signed union cards returned if the employees wished him to do so Vincell admitted
having the two conversations with McEntire but denied that they were as McEntire
testified I credit McEntire
420 DECISIONS _ OF NATIONAL LABOR RELATIONS BOARD
The tonnage volume started to rise in January 1959 at the Dallas terminal . In that
month it was approximately 2,600 ,000 pounds higher than in the prior December.
The LTL tonnage in January exceeded that of December by 1,728,589 pounds.
Although the Respondent had a loss in December 1958 of $35 ,321 systemwide, it
had a systemwide profit of $52,044 in January 1959 . What is especially signifi-
cant is that the December loss compared very favorably with the December losses of
prior years , even though Respondent 's labor costs were considerably increased by
reason of the general wage increases granted in November 1958.
Respondent offered evidence to show that between October 27, 1958, and Janu-
ary 14, 1959, there had been 50 terminations at the Dallas terminal in addition to,
the terminations of McEntire , Taylor, Clay, and McCollum on January 6, 1959, to
support its position that the January 6 terminations were made pursuant to a re-
trenchment program with purely economic objectives . Of the 50 , 4 were office per-
sonnel and 24 others resigned . The remaining 22 were released . Of these 22, 12.
were pickup and delivery drivers-11 part-time and 1 full-time. Respondent failed,
to explain to what extent these drivers were replaced , if at all , and why the reduction,
in man-hours resulting from their terminations did not more than offset the expected
seasonal loss in tonnage insofar as it affected the pickup and delivery department.
Moreover , there is not even a scintilla of representation by Respondent that any of
the 22 employees released were released for economic reasons.
Respondent also failed to explain why it purportedly offset loss in tonnage at
this time by a reduction in the number of employees when its policy had been toa
offset this factor by a reduction in hours worked per employee . It also supports its.
economic argument by reliance on the series of memorandums directed to terminal,
managers by President Linam from October 14, 1958, until January 6 , 1959, when.
the four employees were terminated . I have discussed the merits of these, memo-
randums supra.
I, therefore , conclude that Respondent has not proved its economic defense.
c. Respondent 's other defenses of the January 6, 1959, discharges
According to T. H . Callan, he selected McEntire because of a back injury , Taylor
because he was loafing on his route , "he would stop and talk to anyone," Clay be-
cause he failed to turn in daily mileage reports, and McCollum because he was.
Clay's helper . He testified that when Clay was let go, there was no need for-
McCollum.
McEntire ' was the only witness who gave testimony with respect to his back
injury that T. H. Callan testified was the reason he was selected for release in con-
nection with Respondent 's purported economic layoff on January 6 , 1959. He ad-
mitted he injured his back in the fall of 1958. But he further testified that the doctor
engaged by Respondent to handle these industrial accidents was not able to cure him-
so he went to a chiropractor . The chiropractor cured him and Respondent paid'
his bill. McEntire also testified that Respondent at its expense had the chiropractor
treat other employees for injuries after he had treated McEntire . I credit McEntire's.
testimony , and, therefore , find that Respondent's defense that McEntire was dis-
charged because of a back injury is not supported by substantial evidence.
According to T. H. Callan, he had decided to lay off Taylor sometime in July or-
August 1958 . He gave him no warning of the discharge of January 6, 1959. J. T.
Cookston, a division superintendent at the time of the hearing, complained about
Taylor's conduct on the Royse City run. At one time, this run was covered by an
independent company which operated between Dallas and Royse City. This com-
pany was owned by Cookston. Respondent bought out Cookston when he failed'
and began a Royse City run with Cookston as the salesman Taylor was the
driver.
It appears from the evidence that Respondent had difficulty, like Cookston, in in-
creasing business for this run . Cookston attributed the difficulty to Taylor. He
complained that he did not solicit business . Taylor, on the other hand, testified-
that Cookston was not liked by companies who could have been customers of Re-
spondent . Cookston in his testimony was able to disclose only one instance wherein
Taylor did not solicit business. According to him , he failed to stop at a company's
premises to see whether there was freight to be hauled or shipped. The company
was the G. H. Vaught Manufacturing Company, a small manufacturer of harness
and other leather goods , which some days had as little as a saddle to ship and other-
davs had nothing.
The Vaught Company desired a carrier to be available at 4:30 p.m in the after-
noon to take freight when it had it available . Red Ball . another carrier . and Re-
spondent were competing carriers. Cookston admitted that the business offered did
not justify both Red Ball and Respondent waiting for it . Taylor, in addition to the
CENTRAL FREIGHT LINES, INC. 421
Royse City and nearby Rockwall run, had to service in the afternoon companies in
the Dallas area with a substantial volume of freight to be hauled. Cookston com-
plained about Taylor by letter on August 15, 1957, a month after Respondent took
over the run, and on July 8, 1958, complained to Respondent that it did nothing
about the complaint in the first letter. In July 1958, Respondent permitted Taylor to
return, at his own request, to the interlining of freight in the Dallas area.
I do not find from this evidence that Taylor's working habits when he drove the
run between Royse City and Dallas provided the motive for his discharge, especially
when considered in a context which includes evidence of substantial union activity by
Taylor at or about the time of the discharge. If T. H. Callan was ready to fire him
in July or August 1958, as he testified, he would have released him in the period fiom
October 27 to November 2, 1958, when he released 12 drivers. I find, therefore,
that Respondent's defense that Taylor refused to do his work is not supported by
substantial evidence. In reaching this conclusion I have also considered Taylor's 11
years of employment by Respondent.
In connection with his testimony that Clay was fired because he failed to turn in
mileage reports, T. H. Callan testified that he did not know whether Clay was the
only employee failing to turn in mileage reports 45 Dougher, who was in immediate
charge of the drivers, testified that Clay did not hand in the mileage reports, and
that he talked to Clay on many occasions about his failure to do so. He admitted
talking to Clay about a year after he began his employment about the possibility
of his becoming a supervisor. He also admitted considering him seriously for pro-
motion to supervisor. He testified that he did not give Clay, or recommend him for,
the promotion because he could not control his temper. He conceded he told Clay
,on one occasion that he was a top man, but added that he told this to a number of
-employees as it kept the freight moving
Clay testified, in response to the Trial Examiner's question, that he did not turn
the mileage reports in for 6 months prior to his discharge. He testified that he was
never warned because of his failure to turn them in, and had no knowledge whether
or not he was the only one failing to turn in the mileage reports. He also testified
that he set a practice of marking freight to avoid the taking of time finding it. For
this accomplishment, he was complimented by Al Bragg, a dock foreman, Bill
Mangham, the dock superintendent, and by Dougher, the head of the pickup and
delivery department. He also testified that Dougher had talked to him a year and a
half before he was discharged about the possibility of a promotion to supervisor.
Following his conversation with Dougher about it, Henry King, head of the safety
department of the head office in Waco, discussed the promotion with him. He said
Lackey told him later that the job was given to Earl Vincell because Respondent did
not have anything else for the latter to do at the time. He also testified that he had
never been criticized or reprimanded for failing to control his temper
Respondent's witnesses T. H. Callan and Dougher were silent as to Clay's pro-
duction as a pickup and delivery driver. On the other hand, as found supra, Tabor,
the dispatcher, who assigned Clay to the loads he hauled, was amazed when told that
Clay had been terminated, and stated that he and his helper McCollum were as able
employees as any other employees in the terminal. T. H. Callan and Dougher, in
connection with their testimony regarding the termination of Robert P Lambert, ad-
mitted that production is Tabor's major responsibility. Dougher secured for Clay the
part of the November 1958 general increase which he had not received, and on or
about December 17, 1958, when he informed Clay he would receive it, told him he
was a good man.
I find from Respondent's defense and Clay's admissions that the latter did not
file the daily mileage reports for 6 months prior to his termination, and that the
mileage reports were used by Respondent in determining the production efficiency
factor of pickup and delivery drivers I also find from Respondent's defense and
evidence offered by General Counsel relating to Clay's ability as an employee, that
Clay was a skilled employee who more than satisfied the nroduction requirements of
Respondent. It is evident from Tabor's statements to Clay and McCollum, which
were undenied by Tabor, and from Dougher's statement to Clay, that Respondent
had knowledge of Clay's production and that it met its minimum standard from
sources other than his efficiency factor computed by a method in which the mileaee
report was ,iced. T find further that Clay's recommendation to Respondent of the
procedure of identifying the pieces of freight in the box of a trailer or truck with the
order to which it belonged was responsible for an increase in the productive capacity
of all the units of employees moving freight for Respondent. I, therefore, find that
4 The mileaee report. according to T H Callan and Dougher is nececsarv for the
preparation of the daily report from which the drivers' production efficiency factor is
computed
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in normal circumstances Respondent would not have discharged Clay for his failure
to file daily mileage reports, without at least a warning that as a disciplinary measure
he would be discharged if he continued his failure to file the daily mileage reports
notwithstanding the fact that his production factor was known by Respondent to
meet its efficiency standard, and that he had other skills as an employee. Clay re-
ceived no such warning. I, therefore, conclude that Clay was not discharged for
failing to file daily mileage reports.46
I credit T. H. Callan's testimony, referred to supra, that McCollum's services as a
helper were not needed when Clay, the driver of the vehicle on which he was a
helper, was terminated. I make no finding at this point, however, on the issue
whether McCollum's discharge was illegally motivated.
d. Concluding findings on the evidence dealing with the January 6, 1959, discharges
(1) McEntire
I have found that Dougher, the head of the Dallas terminal's pickup and delivery
department, told McEntire when he notified him of his discharge on January 6, 1959,
that he was letting him go because of his attitude. He admitted that his work was
up to par. Callan testified that McEntire was let go for economic reasons and was
selected because of a back injury. I have found supra that Respondent's evidence
does not support its defenses that McEntire was discharged for economic reasons
and because of a back injury.
McEntire had signed the union card which was an application for membership in
the Union and the designation of it as collective-bargaining representative, and he
had solicited other employees to sign it. Route Supervisor Vincell's seeking him out
on November 13 or 14 to talk to him about the union card; his informing him at that
time that T. ,H. Callan had him on a list of those signing cards and that he would be
fired of he had signed one even though Respondent would hate to loose him because
he was a good employee; T.'H. Callan's conversation with him the next day about it,
in which he said he had heard be had signed a card; Vincell's conversing with him
again a few days later during which he stated that T. H. Callan had talked to him
about the talk McEntire had with him, but that he was "torn up" because McEntire
did not ask him to get the union card back; T. H. Callan's withholding of the prom-
ised wage increase until he was persuaded to give it to McEntire by Route Salesman
Jimmy Gerald on the basis of ability; and Lackey's two requests in conversations he
had with McEntire on December 15 and 16, 1958, that he sign a withdrawal letter,
and statements he made to McEntire at the time of the requests that he believed that
McEntire had signed a card, all show very clearly that T. H. Callan, Vincell, and
Lackey were of the belief that McEntire had signed a card,47 and that his signing
of it displeased T. H. Callan to the extent that he decided to terminate McEntire for
his union membership or activity. It is obvious that Lackey reported to T. H. Callan
all his efforts connected with the antiunion program. McEntire's ability as an em-
ployee and his capacity to do the work are clear from the evidence of the statement
of Dougher that his work performance was adequate, that of Vincell that he was
a good employee, that of Tabor, the dispatcher, that he had nothing to do with the
discharge and would be glad to recommend him for another job, and that of Gerald,
the route salesman, that he was a good driver for the 6 years of his employment.
4e Completely absent from Respondent's evidence is any showing that in selecting the
4 employees for discharge, either T H. Callan or Dougher gave any consideration to the
failings or abilities of the other 94 employees in the pickup and delivery department.
These other employees could have had faults of greater substance that Clay or Taylor
47 President Linam testified that the opposition to the organizational activity was not
only the responsibility of Lackey, but that of all the officials and other management per-
sonnel. Vincell testified that he talked to as many as 25 to 30 employees about the
Union and union activity, and there is Lackey's testimony that he talked to as many
employees as possible on and after December 15, 1958, about the union effort This
evidence and the evidence of the contents of T H.- Callan's, Vincell's, and Lackey's con-
versations with the employees, as well as the references to the signing of union cards and
the offer to assist employees in revoking them in T H Callan's speeches, disclose that
Respondent's effort to defeat the Union at the Dallas terminal were not- limited to an
objective presentation of the disadvantages of representation by the Union, but included
inquiries to employees not favoring the Union as to knowledge they may have had of
employees who favored the Union and signed union cards , and that some of the employees
so questioned disclosed the names of employees who favored the Union and signed .union
cards.
CENTRAL FREIGHT LINES, INC . 423
For these reasons, I find that McEntire was discriminatorily discharged by Re-
spondent on January 6, 1959, in violation of Section 8(a)(3) and (1) of the Act,
and that the general wage increase granted in November 1958 by Respondent to
its employees at the Dallas terminal was discriminatorily withheld from McEntire
in violation of Section 8(a)i(3) and (1) of the Act 48
(2) Taylor
Dougher told Taylor on January 6, 1959, that he was being let go because of his
attitude at the same time he conveyed this information to McEntire. They had
come to see Dougher together pursuant to his request. He also admitted at this
time that Taylor's work was up to par. Respondent's defense was that Taylor was
laid off for economic reasons, and that he was selected because he failed to do his
work.
The evidentiary findings show that Taylor signed a union card and was active
among Respondent's employees in the Union's organizational campaign. As I have
found, Respondent's officials were aware of union activity by its employees at the
Dallas terminal. They knew that Taylor had actively solicited a considerable num-
ber of the 300 or more employees at the terminal on behalf of the Union. In addi-
tion , Dougher and Vincell were close by when Taylor talked to employee Stapleton
about the Union in December 1958, and Taylor had made statements favorable to
the Union to Dock Foreman Al Brad in September 1958 and to Vestal back in
January 1958. Vincell's statement to Taylor in McEntire's presence, shortly after
Taylor had received notice of his discharge from Dougher, that if he had done to,
Respondent what Taylor had done to it, he would not want to remain as its employee,
discloses that Respondent did not look with favor on Taylor's organizational activity.
T. H. Callan's failure to give Taylor the general increase promised on November 12
and 13, 1959, is also indicative of Respondent's attitude toward Taylor. He was
I of 66 top drivers and up until the time of the general increase was one of the
highest paid employees in the terminal. The increase was not an individual increase,
so it was not withheld from him for failure to do his work properly. When Dougher
gave him his notice of discharge, he admitted that his work was up to par. As previ-
ously found supra, Respondent's reasons for discharging Taylor are not supported
by the evidence. Nor is Callan's testimony that he was ready to fire Taylor in July
or August 1958, in view of his failure to do so in October and November 1958 when
he released 12 other drivers.
For these reasons, I conclude and find that Respondent discriminatorily discharged
Taylor on January 6, 1959, in violation of Section 8(a)(3) and (1) of the Act.
Respondent's failure to give Taylor the general increase promised in November
1958 to the employees of the Dallas terminal and received by the other employees
that same month, was also discriminatory conduct on the part of Respondent and
violation of Section 8(a) (3) and (1) of the Act.
(3) Clay
I have found that Dougher informed Clay, a pickup and delivery driver, when
he gave him notice of his termination on January 6, 1959, that he was being let-go
because of his attitude, that the volume of tonnage being handled was "down," that
the order to terminate came from higher up, and that he would give him a recom-
mendation. I have found that Respondent's defenses that Clay was discharged as
part of an economic layoff, and that he was selected as one of those to be laid off
because he failed to file the daily mileage report, were not supported by substantial
evidence.
The evidentiary findings on Clay show that Tabor, the dispatcher, and, therefore,
responsible for production, was amazed when he learned that Clay had been laid
off. He told 'Clay he would compare him favorably with any driver in the terminal,
and offered to give him a recommendation. The findings also show that Dougher,
the pickup and delivery department head, obtained for Clay from T. H. Callan, the
48 In finding that Respondent discriminatorily discharged McEntire , as well as Taylor,
Clay, and McCollum, as I do infra, I have also' been persuaded by the facts that while
Respondent did not trouble to give these employees, two of whom were veterans of 7 and
11 years, advance notice that they were to be discharged and to discuss with, them, what
it claimed were the reasons for the discharges , it considered opposition to union activity
of sufficient importance to warrant its Systemwide Operations Manager Lackey having_ a
private conversation with a number of individual employees about it, during which, the
employee was asked to revoke his application for membership in the Union as well as his
designation of it as collective -bargaining representative.
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
part of the general pay increase that he did not receive on or about November 28,
1958, along with other drivers, as Callan had promised on November 12 and 13,
1958, and told Clay, at the time he informed him he would get the remainder of the
increase, that he was a good man. The findings also show that Clay had been
commended by a dock foreman, the dock superintendent, and Dougher for recom-
mending a practice of marking freight which would eliminate time-taking effort of
looking for it, and that he at one time was considered as supervisory material.
In relation to Clay's union activity and membership, the findings disclose that
he had signed a union card on or about November 3, 1958, which was an application
for membership in the Union and a designation of the Union as a collective-bargain-
ing representative, and that he refused on or about December 17, 1958, Lackey's
request that he sign a withdrawal letter, prepared by Lackey, revoking the application
for membership and the designation of representative. They also show that follow-
ing Clay's refusal to sign the withdrawal letter, Lackey said that an employee was
being laid off because of his attitude, and that in April 1959 Lackey told Clay that
he would be one of the first employees rehired if the Respondent went union. In
regard to Clay's testimony that Lackey also told him during the April 1959 conversa-
tion that he had nothing to do with the discharge, that it was a complete surprise to
him, the Trial Examiner is of the opinion, and so finds, that while T. H. Callan may
not have informed Lackey that he was going to discharge or did discharge Clay,
Lackey did inform T. H. Callan, pursuant to the duties he had in connection with Re-
spondent's program of opposition to the organizational activity of the Union, that
Clay had refused to sign the withdrawal letter. I also find that from the talking going
on in the terminal and through the coordinated antiunion efforts on part of manage-
ment at the terminal, T. H. Callan knew Clay had signed a union card.
For the above reasons, considered against the background of Respondent's anti-
union conduct, I find that Respondent discriminatorily discharged Clay in violation
of Section 8(a) (3), and (1) of the Act. I also find that Respondent discriminatorily
withheld from Clay in violation of Section 8(a)(3) and (1), part of the general in-
crease promised to the employees by T. H. Callan on November 12 and 13, 1958,
and received generally by the employees on or about November 28, 1958. While
it was Clay's refusal to sign the withdrawal on December 17, 1958, that jelled the
decision to terminate him, T. H. Callan's understanding in November 1958, that Clay
signed a union card, caused him to withhold the increase until Dougher pointed
out to him that he was withholding it from a "good" worker. Moreover, since Clay's
only union activity was the signing of the union card, Callan and Dougher could
well have decided not to penalize him until Lackey had talked to him. On Decem-
ber 17 when Dougher told Clay he would get the raise, he also told him that Lackey
wanted to talk to him. After the December 17 conversation with Lackey, it was too
late for Respondent to rescind the decision to give Clay the remainder of the
increase, even though it was not until shortly before Christmas that Clay first received
it. Clay had been informed he would receive it prior to the December 17 con-
versation.49
(4) McCollum
I have found that McCollum was discharged on January 6, 1959. Dougher told
him when he received his notice that the volume of tonnage was down T. H. Cal-
lan testified that his services as a helper to Clay were not needed when Clay was let
go-
I have found that Respondent did not discharge any of the employees at the Dallas
terminal on January 6, 1959, because the volume of tonnage being handled had
decreased during the seasonal slump in November and December 1958 as Respond-
ent alleged. I have agreed with Respondent that McCollum's services were surplus
when Clay, the driver McCollum helped, was let go. The evidence does disclose that
on or about November 3, 1958, McCollum signed the union card, which was an ap-
plication for membership in the Union and a designation of it as collective bargain-
ing representative, and distributed the cards to other employees, and received one back
signed. I have found that T. H. Callan, Lackey, and other management personnel
knew who the employees were who had signed cards. I have also found that McCol-
lum refused to sign a withdrawal letter on or about the last day of November or the
first day of December 1958. On this evidence, considered against the background
of Respondent's antiunion conduct, I conclude and find that Respondent discrimina-
torily discharged McCollum on January 6, 1959,.in violation of Section 8(a)(3) and
(1) of the Act. The evidence of the circumstances of McEntire's discharge, alone,
m The intervention of the Christmas season of 1958 following Lackey's mid -December
conversations with individual employees about the Union undoubtedly accounts for the
delay in the discharges until January 6, 1959
CENTRAL FREIGHT LINES, INC. 425
discloses that T. H. Callan considered the signing of the union card, which was both
an application for membership in the Union and a designation of it as collective-
bargaining representative, together with a refusal to revoke this membership applica-
tion and designation of representative, to be sufficient cause for discharge. The fact
that Respondent had an additional reason, the surplusage of McCollum's services,
does not make the discharge any the less illegal. Even if the surplusage of McCol-
lum's services were the only reason, the discharge would still be violative of Sec-
tion 8 (a) (3) and (1)' because the surplusage resulted from Respondent's illegal con-
duct of discharging Clay 50
e. The evidence that Lambert's discharge on January 15, 1960, was discriminatory
Lambert had been employed about 6 years by Respondent at the time of his dis-
charge. He was a pickup and delivery driver. He was 1 of the 66 "top" drivers
who T. H. Callan said in his November 12 and 13, 1958, speeches would receive a
20-cent general pay raise. He was receiving top driver pay of $2.20 at the time.
Lambert signed the union card which was an application for membership and
designation of representative on or about October 28, 1958. There is no evidence
that he engaged in any organizational activity. Although Dougher told him before
T. H. Callan's speeches in November 1958, that he was to receive the 20-cent general
pay raise that Callan was to announce in the speeches, he received only 5 cents of
it in the November 28 paycheck51 Lambert asked Dougher why he did not receive
it. Dougher told him that he did not receive it because of his attitude. He referred
to Lambert telling driver Malone not to cross the picket line at the plant of the
International Harvester Company. Lambert was in the group with Taylor that
just prior to Callan's speeches discussed this picket line with Malone. He told Lam-
bert and Taylor, who had asked him at the same time why he had not received the
pay raise, to ask T. H. Callan why they did not receive it. At this time, Dougher also,
stated that Lambert's work was not up to par. Lambert, in substance, replied that
Dougher was not correct, that his work was up to par.
Lackey called Lambert into his office on or about December 15, 1958, to talk to him
about the organizational efforts of the Union. His conversation was along the same
lines as his conversations with other employees at or about that time. Lackey told
Lambert that Respondent had to, head off the Union's organizational activity. He
asked Lambert to sign a withdrawal letter if he had signed a membership applica-
tion, stating that there would be no reprisals if he signed it. Lambert said he had
nothing to say one way or another. He told Lackey he believed it was best to keep
quiet about the matter, and further stated that apparently someone thought he had
signed a membership application because he had not received the general pay in-
crease. Lambert also referred to his conversation with driver Malone and Dougher's
comment to him about his work. Lackey said he had heard something about Lam-
bert's work. Lackey also said that he would see T. H. Callan about the raise Lam-
bert did not receive if he would straighten up his affairs and put them in order. Lam-
bert again replied that he did not care to say anything about the matter or revoking
the application for union membership.
Lambert had a conversation with Lackey the following afternoon pursuant to the
latter's request. Lackey told him he had seen Callan about the raise and he was going
to get it. He further said to him that he had done considerable thinking about what
Lambert had told him the prior afternoon, and that he wanted to give him another
opportunity to sign a revocation or withdrawal letter. Lambert replied that he felt
the same way he did the prior afternoon, that he had nothing to say one way or
another. He said that he knew his business better than anyone else. This was what
so McEntire testified that shortly before he was terminated, he advised Malone, another
driver, not to cross a picket line, and that he was told that Malone told Dougher what he,
Taylor, said to him. McCollum testified that he and Clay, on three occasions in the
2-month period prior to his termination informed Tabor, the dispatcher, that they would
not cross picket lines to make deliveries of loads they had been assigned to deliver. I do
not find that Clay or McCollum were discharged for failure to cross a picket line or that
Taylor was discharged for advising Malone not to cross a picket line. McCollum testified
that neither he nor Taylor were required to cross the picket lines, and that the loads
were assigned to other drivers when they informed Tabor they did not wish to cross the
picket lines. Respondent's policy was to give the employee the choice of crossing or not
crossing a picket line When the employee informed the dispatcher he chose not to cross
it, the dispatcher assigned the load to an employee who would cross it. There is no
evidence that Respondent did not give effect to that policy.
51 Lackey secured the remainder of the increase for him after talking to him on
December 15 and 16
426 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD
he told Lackey the prior afternoon when the latter said that someone whom Lam-
bert had tried to sign up , had told him that he had signed a union card. Lambert
,denied that he had ever tried to sign anyone up, that the most he did was to tell one of
the dockmen that the Teamsters were trying to sign up the employees. Lambert
again refused to have anything to say either with respect to the signing of the union
card or the signing of the withdrawal or revocation letter which Lackey had prepared
,and had waiting for his signature. He said that he did not distrust the Respondent
and was not afraid of Respondent. Lambert received the remainder of the raise as
Lackey promised. He also received a 7-cent increase in February 1959. This
brought his hourly rate up to $2.47 an hour.
On February 25, 1959, Lambert met W. W. Callan in the apartment for visiting
officials in the front of the Dallas terminal . Dougher had told Lambert to go to the
apartment to see Callan. Callan asked him how he was doing, that he understood he
was unhappy. Lambert replied he was not unhappy, that he liked his job, and that he
still needed his job. He said to Callan that he was not entirely happy with Dougher
because the latter did not give him raises when they were due, and that when he
talked,to him about things that were not done which shoud be done, Dougher would
become displeased. Callan offered to help him to get a job elsewhere if he cared
to quit, but Lambert replied that he was happy with his job and wished to keep it.
He then said to Callan that he realized he was asked to see him in regard to the
union activity going on in the terminal . He commented to Callan that if Cox,
Dougher's predecessor, had continued to head the pickup and delivery department,
the Union would not be making the headway it was making at the Dallas terminal.
He recalled stating to Callan that when Cox was head of the pickup and delivery
department the drivers hourly rate was always within,a nickel of the union scale, but
since he left, it had dropped down to 30 cents below the union scale.
Callan stated that he did not know for sure there would be an election, that the
Umon might just have to take their men out of Respondent' s operations, that he had
driven a truck once before and could do it again . Lambert replied to Callan that
he was sure he could, that he had heard nothing but good about him, and thought
very highly of him. Callan, who had Lambert's personnel folder before him, then
pointed out to Lambert that he had received 18 wage increases over a period of 5
years. He showed Lambert what the latter was making on a 50-hour week as against
what he would make on a 40-hour union week. Callan also dwelt on some of the
other arguments he, his brother, and other officials of Respondent had been using in
speaking against the organizational activity of the Union. Lambert told him that
he would give a day's work whether there was or was not a union contract, that he
would live by the golden rule. Callan's reply was that in that way Lambert could
go to bed with a clear conscience every night and sleep well. He thanked Lambert
for coming in to talk to him, and said he would see him again at a later date. How-
ever, he never saw him again.
On May 27, 1959, Lackey wrote a memorandum to Dougher regarding Lambert.
The substance of this memorandum was as follows : Calvin Tankersly, an employee,
had requested Vincell for permission to be on leave on Saturday, May 16, 1959,
which Vincell did not grant. Tankersly took the leave without permission. When
Vincell returned from vacation, he talked to Tankersly about this conduct. Lam-
bert overheard part of this conversation , and told Tankersly later that if Vincell was
giving him a hard time or threatening him in any way, he, Lambert, would go to the
National Labor Relations Board and report it to them since he stood in good with
them. Lackey then wrote that Lambert's attitude was not good, that he was a
troublemaker, and that complaints were being made about his work. He concluded
by writing, "This, man should be watched closely." The memorandum was placed
in Lambert's personnel folder.
On or about July 1, 1959, Dougher told Lambert that T. H. Callan wished to see
him in his office and about 8:30 a.m . Lambert went to Callan's office. Dougher also
went there, and remained during the conversation between Callan and Lambert.
Callan told Lambert that he had seen him talking to Leonard Francis Clay on Butler
Street about a week before.52 Lambert admitted talking to him. Clay was then
working for Gillette, a motor carrier, whose terminal was close to Respondent's.
Clay was coming off Gillette's parking lot when he and Lambert saw each other.
He had just returned from a run during which he came close to Gainesville. He
told Lambert about the flood waters there. Clay was a personal friend of Lambert's.
Callan also told Lambert that he had complaints from Sears Roebuck and Co. and
from B. F. Goodrich Co. about him, and that he was stopping by the repair shop
63 Clay was one of the four employees whom the Respondent discharged on January 6,
1959.
CENTRAL FREIGHT LINES, 'INC. 427
too often. Lambert replied that he did not feel the complaint against him about
the Sears Roebuck incident, which occurred prior to May 1, 1959, was warranted. .
The incident at B. F. Goodrich occurred prior. to March 1957. Lambert explained
to Callan that he had to go to the repair shop rather often just prior to the con-
versation because of faulty directional signals. According to him, 12-volt rigs were
being connected to his tractor which was rigged for 6 volts.
Lambert asked Callan if it was his work or something else that was causing him
to reprimand him. I credit Lambert's testimony 53 that•Callan's face turned red, he
lowered his head, and replied that it was only his work, and that if he caught him
loafing once more he would have to let him go. Lambert then said that he was
sorry Callan felt that way as he had always tried to do his job and would continue
to do so. Callan at this point stated that Respondent never persecuted any employee
and did not intend to start at that time, and also stated that Respondent had always
been lenient with personnel . At the conclusion of the conversation, Callan told
Lambert that if he was caught again talking to Clay or anybody else on the "clock"
he would be let go.54
A handwritten memorandum signed by T. H. Callan and dated July 1, 1959,
8:25 a.m , regarding the three subjects discussed by T. H. Callan with Lambert on
the morning of July 1, 1959, was contained in Lambert's folder. The memorandum
in substance stated that T. H. Callan had a discussion with Lambert with Dougher
present, that Lambert's work was not satisfactory as he was very slow in that he
had trouble every day which caused lost time by reason of his stopping by the repair
shop, that there were complaints made by B. F. Goodrich and Sears, Roebuck to the
Respondent about Lambert's work, and that a week prior to July 1, 1959, at 11.45
p m. he saw Lambert's tractor-trailer parked at Butler and Gregg Streets, that
Lambert was just getting in his tractor and Clay was walking away from him.
The memorandum concluded with the statement that Lambert was warned that he
must tend to company business while on duty and must tend to personal or outside
affairs when off duty.
Dougher announced to the pickup and delivery drivers about the middle of
July 1959 that all "top men" effective the following pay period would receive an
increase of 7 cents an hour. This increase was given but Lambert did not receive it
On or about September 21, 1959, Lambert informed Dougher he had not received
the increase. Dougher replied that T. H. Callan had held it out because of the Sears,
Roebuck incident. He further said that he would get him back up in the top group
in time, but that he, Lambert, should continue to do his part.
On September 28, 1959, Lambert testified in this proceeding on behalf of the
General Counsel. I have credited in the main his testimony of that date which
covered the major events in Respondent's conduct at the Dallas terminal in opposition
to the Union's organizational efforts from November 11, 1958, up to and including
May 1, 1959, the date of the election. His testimony of that date also included
events affecting him personally which transpired between Lambert and T. H. Callan,
Dougher, and Vincell, officials of Respondent, from November 11, 1958, up to and
including July 1, 1959. I have credited and given weight to such of this testimony
which I have considered and found to be probative and relevant to the issues raised
by the pleadings. I found Lambert to be a credible and truthful witness He had
problems in connection with his employment not relevant to the issues of this pro-
ceeding Testimony of record regarding these problems were not considered or
53 As will be more fully discussed infra, I have credited Lambert's testimony in this
proceeding.
54I do not consider any complaints about the service Lambert rendered to B F. Goodrich
and Sears Roebuck to be material or relevant to the discharge The incidents giving rise
to the complaints from B F. Goodrich were at least 2Y2 years old, and they had never
been brought to his attention by Dougher, Tabor, the dispatcher, Vince]], his route super-
visor, or by T H Callan. Callan referred to it for the first time on July 1, 1959. Lambert
knew about the complaints from Smith, Respondent's solicitor They were registered with
him by Goodrich's shipping clerk The complaints from Sears Roebuck arose from
Lambert's refusal, during the time he had been assigned to hauling Sears Roebuck freight,
to pull out from Sears' Row Street dock after 3 p in to pick up freight at its Bluefield
Street dock. Lambert refused to do this because by doing so he would be unable to regain
a place at the Row Street dock since Sears' own trucks would have returned by the time
he returned and have occupied all the dock bays I credit Lambert's testimony that he
acted with Dougher's consent. Dougher had stated to him that there were other units
available at Respondent's terminal to pick up the freight at Sears' Bluefield Street dock
This testimony of Lambert was not denied by Dougher. Lambert was taken off this
assignment in May 1959
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
given any weight by me in the preparation of my proposed findings and conclusions.
At the close of Lambert's direct examination on September 28, 1959, counsel for
General Counsel made available Lambert's affidavit to Respondent's counsel, at his
request, for purposes of cross-examination 55
There was placed in Lambert's personnel folder, on or about October 29, 1959, a
handwritten memorandum, dated October 29, 1959, and written by Vincell, Lambert's
route supervisor, dealing with Lambert's job performance on that date. In substance,
it stated that after Lambert was given the freight bills at 8:45 a.m., it took him 15
minutes to go from the office where he obtained them to his truck which was parked
across from the office, that he then went to Delmar's Cafe and stayed there 15
minutes, and from there drove to the terminal of Southern Plaza, a connecting carrier
and his first destination, and then to the terminal of the T.P. Freight Line, a sub-
sidiary of T. & P. Railway, his second and last destination. The memorandum
further provided that Lambert carried 5,300 pounds on his truck for these two
destinations, and took until 11:45 a.m. to make the deliveries and return to the
terminal.
On or about January 13, 1960, there was placed in Lambert's personnel folder
a memorandum dated January 13, 1960, signed by Vincell regarding Lambert. The
memorandum in substance stated that on January 12, 1960, Lambert was dispatched
to return a trailer to Red Arrow; that he did not have to pick up another trailer;
and that he took from 1:50 p.m., the time he left Respondent's terminal, until
3:15 p.m., the time he returned to Respondent's terminal. The memorandum stated
further that Tabor, Respondent's dispatcher, had a telephone call from Adams, the
dock foreman at Red Arrow, in which he stated that Lambert and a Southern
Express driver sat out on Red Arrow's yard for 45 minutes talking.
About 5:15 or 5:30 p.m. on January 15, 1960, Lambert reported to Dougher
in the office reserved for Lackey in the Dallas terminal. He had been instructed
to report to Dougher by Manning, the afternoon dispatcher. Lambert and Dougher
only were present, until Vestal, a route supervisor, came into Lackey's office about
10 minutes before the end of the conversation. Dougher said that there had to be
an economic layoff and that he was one of the ones selected. He refused to elabo-
rate further on the selection of Lambert. On July 22, 1960, Lambert had a con-
versation with T. H. Callan about his discharge. Only Callan and he were present.
a bad attitude, tried to tell Respondent what to do, and had a persecution complex
Callan told Lambert he was selected for the layoff because he was slow, bossy, had
although he was not persecuted. Callan also stated that if he, Lambert, started
for the shop with anyone else he stayed several paces behind him, and that he was
not interested in his job. T. H. Callan asked Lambert in the course of the conversa-
tion whether he was looking for something he could report to the National Labor
Relations Board. Callan did tell Lambert at the time that he washonest.
When Lambert was discharged by Dougher on January 15, 1960, he asked
Dougher if he would be reemployed when business improved. Dougher replied
that he did not believe so. On April 14, 1960, Lambert inquired from Dougher by
telephone whether he could go back to work. Dougher replied that Respondent
was not putting anybody back to work "much." Lambert then asked him what his
chances were "of going back if things picked up." Dougher replied that he did
not know, that he would have to check with T. H. Callan about such a matter.
General Counsel's evidence also discloses that on January 15, 1960, 82 drivers
out of approximately 100 in the pickup and delivery department of the Dallas
terminal had less seniority than Lambert,56 55 of the pickup and delivery drivers
during the course of their employment had more traffic accidents than Lambert had
in the course of his employment, 57 of these drivers made more errors in pickups
and deliveries during 1959 than Lambert did, and 20 of them had suffered more
personal injuries during the course of their employment than Lambert suffered
during the course of his employment.
Lamberts testifying on September 28, 1959, and his furnishing of an affidavit to the
General Counsel in the course of the investigation by the latter of the matters concerning
which testimony was given on September 28, are evidence offered by General Counsel to
support the allegation of the amended complaint in Case No 16-CA-1326; that he was
discharged for testifying for the General Counsel and furnishing information to him
regarding Respondent's conduct
w While the record reveals that an employee was not protected by seniority at the time
of a reduction-in-force, as T H. Callan himself testified, seniority was a factor taken into
account by him when selecting an employee for discharge in view of the investment
Respondent had in an employee of longer service and the experience such an employee had.
CENTRAL FREIGHT LINES, INC. 429
f. Respondent's defenses of Lambert's discharge on January 15, 1960
Respondent offered through T. H. Callan considerable documentary evidence to
support the defense that Lambert' s termination was part,of a reduction-in-force for
economic reasons. T. H. Callan, Dougher, and Adams, the dock foreman of Red
Arrow, testified in support of the defense that Lambert was not discriminatorily
selected for discharge in connection with the reduction-in-force for economic reasons.
In defense of the discharge, T. H. Callan testified that upon receipt of a memor-
andum from President Linam on or about January 13, 1960, in which Linam stated
there would have to be additional layoffs of full-time people, he had a meeting with
Dougher and requested a list of names from him of employees employed in his
department that he believed should be selected for layoff because of their records.
He further testified that Dougher furnished him a list which included the name of
Lambert. According to Callan, he followed Dougher's recommendation and on
January 15, 1960, laid off the employees on Dougher' s list . Dougher testified that
it was his recollection that pursuant to Callan's request he furnished him the names
of Lambert, Harris, Howard, and Morris. Respondent's records disclosed that
Lambert and C. B. Harris, also a full-time pickup and delivery driver, Larry Howard
and Roy Morris, two part-time drivers' helpers and trainees, and Jesse Williams,
an office worker, were laid off on January 15, 1960. These records contain the
explanation that these employees were laid off due to an economic reduction-in-force.
Respondent's records also show that there were 10 other employees terminated in
January 1960 with an "economic reduction in force" as the stated reason, and that
the difference between Respondents' total revenue and total expenses for its system-
wide operation in December 1959 and January 1960 were losses of $122,658 and
$103,395, respectively. This evidence remains unrebutted by General Counsel.
Counsel for General Counsel stated at the hearing on April 27, 1960, that General
Counsel did not allege that the layoff of January 15, 1960, lacked economic justifica-
tion, but only that Lambert was discriminatorily selected as part of the layoff. I
now find that General Counsel has not proved that the layoff on January 15, 1960,
lacked economic justification. The only issue outstanding in regard to this layoff
is whether or not Lambert was discriminatorily selected to be part of it.
Dougher further testified that he selected Lambert because of the memorandums
in Lambert's personnel file dealing with Lambert's conversing with Clay a week
prior to July 1, 1959, his loafing on October 29, 1959, and his loafing at the Red
Arrow terminal on January 12, 1960.57 According to him, he instructed Vincell to
investigate the Red Arrow incident which resulted in Vincell's memorandum of
January 13 regarding the incident.
Dougher testified in regard to Lambert' s talking to Clay on July 1, 1959, that he
would not deny a driver the opportunity to talk to another driver "on the clock"
if one of the drivers had knowledge of something that affected the ohter driver's
employment or personal life which the other driver should know. It is clear from
the evidence that T. H. Callan in the conversation with Lambert on July 1, 1959,
with Dougher present, made no attempt to find out what the conversation was about,
and was not interested in whether or not there was justification for the conversation.
Callan in his testimony on April 27, 1960, stated that an employee had no justifica-
tion for talking to another employee "on the clock." This position is not recon-
cilable with his statement to Lambert on July 1, 1959, that Respondent had always
been lenient with employees, and with Dougher's statement that drivers would not
be held accountable for conversing with other drivers "on the clock" if there was
some information that one driver should convey to the other.
In connection with the statement in the October 29, 1959, memorandum that
Lambert on that date stopped for coffee at Delmar's Cafe immediately after starting
out from the Dallas terminal about 9 a.m. on his morning run, Dougher stated that
he had no knowledge whether or not drivers K. V. Hester, George Herriage, his
brother, Roberts, Moody, Osteen, or Sumrall were having coffee at Delmar's Cafe
at a time Lambert stopped there for coffee. I credit Lambert's testimony that these
drivers were present at Delmar's Cafe sometime in October 1959 about 8:45 a.m.
while on their first run, at the time he was there. I further credit his testimony
that he saw Vestal, a route supervisor, across the street from the cafe watching them.
The personnel folders of these drivers did not contain any report from Vestal,
Vincell, or anyone else, that these drivers were present at Delmar's Cafe at the
57 These memorandums are set out in substance, supra
'430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same time as Lambert.58 No official of Respondent questioned Lambert about his
getting coffee on the morning of October 29, 1959. Lambert stated that the morning
he had coffee at Delmar's Cafe in October 1959 could have been the morning of
October 29. The memorandum of October 29 does not disclose whether Vincell
saw Lambert or whether he received the information from Vestal. Vestal did not
testify.
Dougher admitted in connection with the coffee break incident that there were
occasions when he had coffees with drivers at the cafeteria in the Dallas terminal
before they started out on their morning runs. Lambert testified that he never took
more than one coffee break in the morning and afternoon, and rarely took one in
the afternoon. He also testified that Delmar's Cafe was on the route to the Southern
'Plaza Terminal, his first destination, and that it had a reputation for good coffee.
Dougher also testified that normally a driver should be in his truck or tractor
ready to drive off about 5 minutes from the time he received the freight bills.
Lambert testified that he broke down the bills after receiving them, and that this
practice took about 15 minutes. The actual time, according to him, depended on
the pieces of less-than-truckload freight he had to deliver at any one particular time.
Dougher did not disclose whether or not the time of 2 hours and 45 minutes that
Lambert took to deliver 5,300 pounds of feright to Southern Plaza and T.P. on
October 29, 1959, and return to the terminal, was unreasonable. The memorandum
merely contained the flat statement that he took such a time. Lambert was never
questioned with respect to this delivery. It appears to the Trial Examiner that
material facts were the extent of the traffic on that particular day, and the time it
took for the processing of the unloading at both terminals. The latter would include
the elapse of time, if any, between Lambert's arrival and the starting of the process-
ing, and the wait, if any, for unloading space.
Dougher admitted that he had no knowledge of the incident at Red Arrow other
than what was contained in the memorandum of January 13, 1960, in Lambert's
personnel file. He admitted that drivers could talk if the talk did not interfere
with each other's work. In support of Respondent's version of what occurred at
the Red Arrow terminal on January 12, 1960, as stated in the memorandum of
January 13, 1960, in Lambert's personnel file, John A. Adams, assistant terminal
manager for Red Arrow, testified. He was in charge of operations, including dock
operations, at Red Arrow's terminal on January 12, 1960. He recalled Lambert
returning the trailer in January 1960. He recalled telephoning Tabor, the dis-
patcher, and straightening out the identity of the trailer, making out the interchange
papers, and then assigning a particular spot at the dock for Lambert to place the
trailer in. According to Adams, he then engaged in other work, and later received
a telephone call from Tabor in which the latter inquired as to the whereabouts of
Respondent's tractor that had pulled the Red Arrow trailer. Adams investigated,
and found Lambert ending a conversation with a Southern Plaza driver and about
to leave the terminal. He then called Tabor back and told him that Lambert had
just left.
Adams could not recall the spot or bay at the dock he assigned to Lambert as
the place to drop the trailer. He could not recall the length of time Lambert was
in the Red Arrow terminal. Lambert did not come to Adams and tell him the spot
he had assigned for the trailer was occupied. Adams testified that Vincell, Lambert's
route supervisor, visited him the next day, and that he told him Lambert was in the
terminal 30 to 45 minutes. Vincell's memorandum in Lambert's file about the Red
Arrow incident states that Adams told Tabor over the telephone that Lambert had
been in the terminal 30 to 45 minutes. Adams also testified that there is a standard
form for recording the interchange of trailers which is used by all members of the
Trucking Association of which Respondent and Red Arrow are members. The
initial interchange is recorded on one side and the return is recorded on the other
side. The form for the return calls for the owner's number of each tire, and for
the filling in of a diagram with information designed to show the condition of the
front, rear, each side, the top, and the floor, the type and number of the trailer, and
other facts relevant to the trailer interchange. In order to fill in the information
required, visual inspection is necessary. According to Adams, the inspection took
no more than 10 minutes.
Lambert testified that it took 15 to 20 minutes for Adams to complete the form
with respect to the receipt of the interchanged trailer. Lambert had to crawl under-
neath the trailer to secure Red Arrow's tire numbers because Adams had good clothes
581 credit Dougher's testimony that Respondent had a policy known to drivers that
they were limited to one coffee break in the morning and one in the afternoon, and that
the morning break should be after 10 :30 o'clock and the afternoon break after 3 o'eloek_
CENTRAL FREIGHT LINES, INC. 431
on. According to Lambert, it was 30 minutes to 1 hour after the completion of the
form showing the return of the trailer, before the vehicle in the assigned spot moved
out to permit him to move in the interchanged trailer. He said he never called
Tabor because the latter always said to "stay and sweat it out." The evidence is
clear that Lambert was not asked to furnish an explanation for the unusually long
time taken by him to return to Red Arrow, and that he was given no notice on
January 15 and on January 22, 1960, when he discussed his termination with
Dougher and T. H. Callan that he was selected for the economic layoff because of
the Red Arrow incident on January 12, 1960.
g. Concluding findings on the evidence dealing with Lambert's discharge
on January 15, 1960
From the above evidence , I make the following findings and conclusions.
Respondent was suspicious as early as November 1958 that Lambert had signed
a union card and for that reason withheld 15 cents of the 20-cent general increase
T. H. Callan promised to the "top" pickup and delivery drivers on November 12 and
13, 1958. Lackey secured the 15-cent remainder of the raise for Lambert on or
about December 15, 1958, as an inducement to cause him to sign on December 16,
1958, the withdrawal or revocation letter that Lackey had prepared for his signature,
if he had signed one. Lambert 's statements on December 15, 1958, to the effect
that someone must have thought he had signed the union card which was a union
membership application and a designation of representative , because he had not
received the 15 cents , and that he would take no position one way or the other
with respect to the signing of the withdrawal letter, apparently left Lackey with
some doubt that he had signed the card. Lambert's adherence on December 16, 1958,
to the equivocal position that he had taken the day before that he would neither say
no nor yes with respect to the signing of the letter even after the inducement of the
remainder of the 15-cent increase , left Lackey with greater doubt that he had signed
the union card. Lambert received the February 1959 increase and had a friendly
talk with W. W. Callan on or about February 25, 1959. While Respondent 's officials,
were not certain that he had signed the union caid they were of the opinion that
he could well be in the position of reaching a decision favorable to the Union.
Lackey became convinced that Lambert favored the Union in May 1959, as is
evidenced by his memorandum of May 27, 1959 , in which he stated that "This man
should be watched closely " Lambert was engaging in concerted activity with
Tankersly with respect to Tankersly's job. I find that Lackey's chief concern was,
with the disclosure of Lambert's familiarity with the processes of the National Labor
Relations Board. This disclosure erased Lackey's doubt as to whether Lambert was
a union adherent. Lambert was watched closely from then on. T. H. Callan saw
him about a week prior to July 1 , 1959, talking to Clay. Clay was discharged on
January 6 , 1959, by Respondent . I have found that he was discharged for union
membership and activity . T. H. Callan knew that the Union had charged Respond-
ent with an unfair labor practice because of Clay's discharge and that a Board com-
plaint had been issued against Respondent based on this charge.
The testimony regarding the memorandums dealing with Lambert's loafing on
October 29 , 1959, and his conduct on January 12 , 1960, at the Red Arrow terminal,
show that the contents of these memorandums did not disclose substantial facts
about the incidents they discussed . Dougher's testimony and the reputation Re-
spondent had and has for being lenient with employees, indicate clearly that in nor-
mal circumstances Dougher would not have recommended Lambert for discharge on
the contents of the memorandums alone. Other evidence that Respondent was not
conforming to its ordinary personnel practices when it discharged Lambert was its
rehiring on March 24, 1960, of Bradley, a pickup and delivery driver who had
been discharged on January 18, 1960, for failure to perform his duties because of
indulgence in alcohol. Although the medical report on him dated March 24, 1960,
the day he was rehired, showed he was fit to resume work, the report by the same
doctor dated March 22, 1960, 2 days before he was rehired, stated that he was
suffering from delirium tremens.
Dougher's reliance on the July 1 and October 29, 1959, and January 13, 1960,
memorandums in selecting Lambert for discharge , and T. H. Callan's acceptance of
Dougher's recommendation , show clearly that the Respondent was looking for ex-
cuses and awaiting the opportunity to discharge Lambert on the pretext of a poor
record. Dougher was present on July 1 , 1959, when Callan reprimanded Lambert
for talking to Clay "on the clock." He knew that T. H. Callan desired the oppor-
tunity to discharge Lambert . Supporting these findings of the Trial Examiner is
the evidence of General Counsel that on January 15, 1960 , 82 drivers in the pickup
and delivery department of the Dallas terminal had less seniority than Lambert, 55
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the pickup and delivery drivers during the course of their employment had more
traffic accidents than Lambert had in the course of his employment, 57 of such
drivers made more errors in pickups and deliveries during the year 1960, and 20 of
them had suffered more personal injuries during their employment than Lambert
suffered during his employment.
On the above evidentiary findings, I conclude and find that Respondent discharged
Lambert in violation of Section 8 (a) (3) and (1) of the Act, because of union
membership and activity, in order to discourage membership in the Union, and I
conclude and find that Respondent discharged him in violation of Section 8(a)(4)
and (1) of the Act because he testified for, and furnished information to, the
General Counsel in these proceedings. I further find that Respondent withheld the
July 1959 wage increase from Lambert to discourage membership in the Union in
violation of Section 8,(a) (3) and (1) of the Act.
3. The discharges at the Waco maintenance and repair shop
John D. Harris and Monie Denman, who were employed as mechanics by 'Re-
spondent at its main maintenance and repair shop, located in Waco, Texas (herein
called the Waco shop), were discharged on March 28 and 21, 1960, respectively, by
Respondent. Harris' discharge was effective on April 2, 1960, and Denman's dis-
charge was effective on March 26, 1960. At the time of their discharges, Harris
was employed in rebuilding differentials and transmissions for diesel tractors and
Denman was employed in rebuilding axles for diesel tractors.
General Counsel contends the discharges were discriminatory, while Respondent
contends they were laid off because two employees were not needed to do the type
of work they had been doing in the unit overhaul department, and Harris was
selected because of discourtesy to his immediate supervisor and Denman was selected
because of illness had made the work he was doing too heavy for him.
A brief description of the work of the Waco shop and Respondent's estimate of
the workload it has to carry for the year April 1, 1960, to March 31, 1961, compared
to the period April 1, 1959, to March 31, 1960, appear to be required background
for an understanding of the circumstances related to Harris' and Denman's discharges.
a. Description of the Waco maintenance and repair shop and its estimated
work schedule for the year April 1, 1960, to March 31, 1961
The Waco shop is located about 4 miles from the Waco terminal. It is part of
the purchases and maintenance division of Respondent. Jack B. Callan, brother
of W. W. Callan and T. H. Callan, is vice president of this division of Respondent.
His office is in a new building adjoining the Waco shop. The records section of
his division remained at the Waco terminal when his office was moved to the new
building about April 1959.59
The Waco shop, generally, does the major overhaul on the 240 diesel tractors
and the 700-odd trailers used by Respondent in its intercity operations. It is also a
local shop for the Waco terminal. It is housed in a building which will be augmented
by a new addition that was about completed at the time of the supplemental hearing
in April 1960. The older shop is 100 feet wide and 325 feet long and the new addi-
tion is 120 feet wide and 156 feet long. It is separated into five departments. They
are the heavy tractor service department, the lighter maintenance service depart-
ment, the trailer department, the parts department and the overhaul department.
The department foremen at the time of the conduct in issue were L. S. Ball for
the heavy tractor service department, Clyde Blackburn for the lighter maintenance
service department, Thomas McWilliams for the trailer department, and Ernest Opley
for the unit overhaul department. The record is silent as to the name of the foreman
of the parts department. The shop as a whole has a superintendent under the
supervision of Jack B. Callan. Gilbert was the superintendent in May 1959, but he
was terminated shortly thereafter. The record is also silent as to who the super-
intendent was at the times of the conduct in issue. There were approximately 16
employees in the unit overhaul department and approximately 75 employees in the
whole Waco shop at the times of the conduct in issue.
The unit overhaul department rebuilds used subassemblies and parts such as en-
gines, transmissions, differentials, axles, generators, starters, carburetors, brake parts,
radiators, batteries, and many other items. These subassemblies and parts are used
"The other divisions of Respondent are the transportation division and the operations
division. The former is concerned with the movement of freight and the latter is con-
cerned with the operation of terminals. Callan's division does the purchasing for the
whole system. This includes the purchase of mobile equipment
CENTRAL FREIGHT LINES, INC. 433 -
in the complete overhaul of the 240 intercity diesel tractors every 288,000 miles.
The vehicle is rebuilt by replacing all the major subassemblies and parts, and the
complete repair of the cab. This is known as the "H" check. About 10 percent
of these tractors are assigned to the Waco terminal, and 60 percent to the Dallas
and Houston terminals. The remainder are assigned to other terminals. The "H"
check program contemplates that the work be done during the time a tractor hauls
a load to the Waco terminal from the terminal to which it has been assigned and its
return to that terminal. It is therefore necessary that all subassemblies and parts
necessary for the overhaul be available in advance of the actual overhaul by the
heavy tractor service department.
In addition to this rebuilding, the unit overhaul department rebuilds parts and sub-
assemblies required in the "G" check operation. This is an overhaul after 144,000
miles of service. While it requires less replacements than the "H" check operation,
the injectors, blower, fuel pump, air compressor, upper rocker boxes, cylinder heads,
starter, and generators are replaced, as is any other part or subassembly that a
thorough check of the tractor discloses to be in poor condition.
Up until April 1, 1960, the "G" check was done by the Waco shop only on the
intercity tractors assigned to the Waco terminal. The "G" check on the remainder
was done at the branch shops in the terminals to which the tractors were assigned.
As previously stated 60 percent of these tractors were assigned to Dallas and Houston.
About 10 percent were assigned to the Waco terminal. Unit overhaul rebuilt com-
ponents not only for the "G" checks at the Waco shop but at all the branch shops as
well. In April 1960, the Waco shop took over the "G" check operation on intercity
tractors that had been done at the branch shops. That meant. adding additional "G"
check work for an additional 216 intercity diesel tractors.60
Respondent's evidence shows that from April 1, 1959, to March 30, 1960, the
Waco shop performed 53 "H" checks. In 4 of the months, four each were com-
pleted, in 3 of the months five each were completed, and in the months of October
and December 1959 and January 1960, eight, six, and seven, respectively, were com-
pleted. In April 1959 one was completed and in May 1959 none was completed.
Respondent forecasts for the year April 1960 to March 31, 1961,.26 "H" checks
on intercity equipment as against 53 for the previous year, and 83 "G" checks for
the same period as against 8 or 9 for the same prior year period. So the unit over-
haul department in which both Harris and Denman, worked would have to provide
rebuilt parts for 27 less "H" checks but for additional "G" checks, than were re-
quired for the previous year. There are an additional 74 "G" checks estimated.
While it is true that since unit overhaul rebuilt used components for "G" checks
in the branch shops as well as the Waco shop, the demand for the rebuilt parts-will
not increase by the additional number of "G" checks that will be made at the Waco
shop, _nevertheless the demand will increase because some of the "G" checks handled
at the terminal level had been farmed out to independent shops along with the neces-
sary rebuilding. Moreover, there will be to some extent the same demand by branch
shops for rebuilt components, since they will be used in the new program calling
for "G" checks in the branch shops of intracity equipment.
b. The evidence that the discharges of Harris and Denman were discriminatory
(1) Harris
At the time of his discharge, Harris had been employed approximately 10 years
and 3 months He had the status of a "top" mechanic. His hourly rate was $2.50.
He was the mechanic who rebuilt differentials and transmissions in the unit over-
haul department of the Waco shop. These subassemblies were and are intended
for use by the heavy tractor service department in the complete rebuilding of the
240 diesel tractors engaged in Respondent's intercity operations after they have
given 288,000 miles of service. When Harris was first employed by Respondent
he worked on the floor as a mechanic and did all kinds of repair work. For most
of the time following his initial employment, he was engaged in rebuilding dif-
ferentials and transmissions, a very important assignment. However, on occasion,
he rebuilt other subassemblies and parts. Respondent sent him to the mechanics
school of General Motors Corporation on two occasions, once to learn about trans-
missions, and the other to learn about differentials. Two weeks before he was dis-
60 The Waco shop also performs four minor checks (3,000, 8,000 24,000, and 72,000
mile checks) for Waco terminal intercity equipment, and a "G" check and the four minor
checks for intracity trucks and tractors assigned to the Waco office. It also performs all
work required by the passenger automobiles assigned to the Waco terminal.
624067-62-vol. 133-29
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged, Opley, his supervisor, told him his work was fine. He was reprimanded
only once in 10 years.61
Harris signed a union card, which was an application for membership in the Union
and a designation of it as collective-bargaining representative. He was initiated into
the Union in May 1959, and was a union observer at the Board election on May
1, 1959. He engaged in casual conversation with other employees about the Union
before and after the May 1 election. He attended union meetings. The last union
meeting he attended prior to his discharge was in Dallas on March 6, 1960.
When he reported for work on May 4, 1959, the Monday following the Board
election on Friday, May 1, he found that his timecard was missing from the rack
where it was customarily kept. Opley, his supervisor, told him to go to work and
he would take care of the card. About 8:30 a.m., Vice President Jack Callan told
him he wished to talk to him out in his car. Both Harris and Callan went out to
the latter's car . Callan, in the course of the conversation, asked him why he did
what he did. He was referring to Harris' acting as a union observer. Harris replied
that he did it for the good of the employees. Callan then said that he ought to
resign . Harris' rejoinder was that he would not resign, that Callan would have to
fire him. Callan ended the conversation by saying that he would not fire him that
morning.
About 9 o'clock, of the same morning, Supervisor Opley spoke to Harris in his
office. He said to him that if he could forget about the Union to do so, that he
would go along with Harris, and forget what happened. Gilbert, the Waco shop
superintendent, came in Opley's office at that moment. He told Harris that what he
had done would hurt him for the rest of his life. He also said that he had several
calls from the head office in which inquiries were made as to whether Harris had
reported for work.
On or about Monday, May 18, 1959, W. W. Callan, chairman of the board of
directors, spoke to Harris about 8 a.m. in Opley's office. Opley was present. W. W.
Callan said to Harris that rumors were going around that Harris was going to fire
certain employees, and that he wanted the rumors stopped. Harris denied he said
anything about firing employees, that he did not have the authority to fire anybody.
Harris also said to W. W. Callan that he did not like the way people were talking
about him or calling his wife bad names.62
I credit Harris' testimony that after the May 1 election, Opley exercised closer
supervision over the employees in the overhaul unit than he did prior to the election
and that he was on the floor of the overhaul unit more and in his office less than he
was prior to the election.
Harris in his work of rebuilding differentials and transmissions was required to
use heavy-duty sockets. The socket board was about 30 to 40 feet away from
Harris' workbench, back of the location where Rice and Enders, two other mechanics
in the unit overhaul department, worked. Oftentimes the sockets would be dis-
tributed among the employees in the unit overhaul department, and Harris would
have to go from bench to bench in order to locate them. Respondent had one
torque wrench. It was located on the other side of the Waco shop about 40 feet
from Harris' bench. On occasions, Harris used this wrench. There was only one
socket in the Waco shop that fitted pinion nuts on the big heavy-duty tractors.
m This reprimand will be discussed infra.
62Harris testified that line drivers called Mrs. Harris on May 1, 1959, during the time
he was acting as observer at the election, and called her certain vile and immoral names
According to Harris, W. W. Callan, in response to Harris' statement about the names
employees called his wife, replied that after what he did, they had a right to call his
wife bad names W. W. Callan recalled that Harris did state that employees had called
his wife bad names on May 1, but denied be replied as Harris testified he did Callan
testified that he said to Harris that he was not responsible for what was said to his wife
and that there was nothing he could do about it This testimony by W. W. Callan re-
flects an indifference about what happened to Harris' wife as a result of Harris' engaging
in protected activity, which is in sharp contrast to the attitude he took about an incident
that occurred on Saturday, May 16, 1959 , away from Respondent's premises between
Harris and Bean, another employee at the Waco shop. It occurred outside working hours
Bean directed Harris' attention to a trailer that appeared to be in rundown condition
and said , "That's Union." Bean had been making uncomplimentary remarks about Harris
in connection with his union activity. Harris told Bean he was going to give him a
chance'to lick him. Bean replied that they had been friends for a long time and that be
did not intend to start anything. Opley told Harris on Monday, May 18, 1959, that
W. ,W.' Callan had come to the Waco shop to complain against him because of the incident
involving him and Bean on May 16.
CENTRAL FREIGHT LINES, INC. 435
Harris had occasion to use this wrench. He would have to locate it by going from
bench to bench until he located it. In going from bench to bench to locate tools,
Harris would engage in a few words of casual conversation. -
One morning in August 1959, Supervisor Opley came to Harris' workbench and
told him to stay at his workbench and not be traveling from one bench to another
bothering employees. Harris told him he would not remain at his bench all the
time. After the noon lunch period, Harris asked Opley to go into Jack Callan's
office with him, which Opley did. Harris told Callan that Opley had ordered him
to stay at his workbench and not go from one work bench to another bothering
people. Harris said he did not like this order. Callan replied that Opley was Harris'
supervisor, and that the best thing for Harris to do was to go out to his bench and
follow Opley's instructions.
About February 26, 1960, Fry, of the Dallas branch repair and maintenance shop,
visited the unit overhaul department of the Waco shop to show to Harris some ad-
justments to make in differentials that Harris did not know about. When Fry started
to give Harris the instructions, Supervisor Opley came over and asked Fry to wait
until Billy Jack Hull could also have the benefit of the instructions. Hull was called
over by Fry and then Fry used the better part of the day discussing the adjustments
with Harris and Hull. Hull had begun employment in September 1959. His first
assignment was helping Denman overhaul transmissions for about 2 weeks. Denman
was then transferred to the axle department, and Hull continued to overhaul trans-
missions and occasionally assisted Harris. Harris was then working on differentials.
On or about March 21, 1960, Supervisor Opley told Harris at the latter's work-
bench that his work was mighty fine and that he was pleased with it.
At 8 a.m. on March 28, 1960, Harris was in Opley's office. Opley at that time
said to Harris that he was sorry they were going to discontinue Harris' department
and they were going to have to let him go. Harris said that he did not see how
they could discontinue his department in view of the amount of equipment there
was to work on and in view of the amount of work that had to be done. He then
said to Opley that he knew they had Hull to take his place. Opley then said that
he was sorry but that was the way it was and nothing could be done about it. He
told Harris he would work until Saturday, April 2, 1959, and finish the week.
On April 2, 1960, Harris had a conversation with W. W. Callan, Jr., the son of
W. W. Callan, chairman of the board of directors. Harris believed there was a
mistake on his check, and young Callan was the one to see about it. Harris did not
know young Callan's official position. In the course of the conversation, Harris
asked him for the reasons he was being discharged. He said that they were "caught
up," that they did not have the work, and just had to let him go. Harris -asked him
who was going to handle the transmissions and differentials that had been torn down,
and young Callan replied that that was what they had Hull for.
Harris had a conversation with Vice President Jack Callan on April 2, 1960. He
went into Callan's office, said goodbye, and asked him for his story about his dis-
charge. Callan replied that Harris' department was being discontinued. In answer
to Harris' inquiry as to who would do the work on the differentials and transmissions
that had been torn down, Callan said that Hull was available for that work.
(2) Denman
Denman began his employment with Respondent in the Waco shop on March 10,
1958. As previously found, he was discharged on March 21, effective March 26,
1960. At the time of his discharge, he was receiving, like Harris, the top rate for
mechanics of $2.50 per hour. Like Harris, he was a mechanic in the unit over-
haul department.
On the first day of his employment, Denman worked on front axles for GMC
tractors. The next few days he worked on miscellaneous jobs. He was then as-
signed to transmissions, and rebuilt them for 16 months. When Hull began his
employment in September 1959, he was assigned to work with Denman on trans-
missions. After 2 weeks, Denman was assigned to the rebuilding of front axles,
rear axles, and idle axles. He was on this assignment when he was discharged.
Hull continued to work on transmissions. When not working on axles, Denman
rebuilt transmissions, starters, generators, distributors, and rearranged the unit over-
haul department. He also worked on Cummins engines and to some extent on
GMC engines. There were three mechanics in the unit overhaul department with
less seniority than Denman. There were approximately 15 employees in unit over-
haul and 75 in the Waco shop as a whole.
Denman was a member of the Union. He was initiated into membership in
May 1959, at the same time as Harris.' Denman and Harris went to_ the union hall
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
together for this event. The last union meeting he attended was in March 1960
in Dallas.
Denman lived at a rooming house in the Waco area during the first 5 months of
his employment. He was then taken ill, due to ptomaine poisoning. Supervisor
Opley found he was ill, and with the help of Harris brought him to a hospital.
When he recovered, he went to live at the home of Harris and Mrs. Harris. He
stayed with Harris and his wife from September 1958 to November 1959.
On March 21, 1960, when Denman was at the parts counter,' Supervisor Opley
called him outside the door. He said he would have to let him go because he was
discontinuing the department. He further said that his work and his capacity to
get along with the other employees were excellent. He then told him to work until
the end of the week, Saturday, March 26, 1960. This was his last day of employ-
ment. On March 23 or 24, 1960, Denman discussed his discharge with Vice Presi-
dent Jack B. Callan. He asked Opley to go with him to see Callan. Callan said
they were discontinuing the department, that they had bought a number of new
GMC tractors, and that they were caught up in unit overhaul. Denman asked
Callan why they had picked him since there were three mechanics in unit overhaul
with less seniority than he had. Callan did not answer. On Friday, March 25, 1960,
about 10 p.m., Denman communicated with W. W. Callan, the board chairman.
W. W. Callan arranged to see him next morning. W. W. Callan talked to Denman
the next morning, about 11:30, near the Coke machine. He said that Denman's
record was clear, that the only reason he was being let go was the discontinuance
of the department. He said he would give Denman a recommendation.
c. Respondent's defenses of Harris' and Denman's discharges
Vice President Jack B. Callan and Supervisor Opley testified for Respondent in its
defense of Harris' and Denman 's discharges. Callan testified that the "H" check
program which had required the starting of two shifts in June 1959 had begun to
decline in March 1960, and a survey of "H" checks for the next year showed that
considerably less "H" checks would be needed. He, therefore, in March 1960, asked
Ball, the supervisor of the heavy tractor service department which performed the
"H" check operation, and Opley, the supervisor of the unit overhaul department
which rebuilt the parts and subassemblies for the "H" check operation, to check their
departments to see if they could do with less men. According to Callan, Opley re-
ported back to him in mid-March that he could do with two less men, 'that there was
no need to keep a man working exclusively on transmissions and differentials or on
axles. Callan said that Opley told him that Harris and Denman would be affected.
He also said that Opley stated to him that his department would run, easier without
Harris. Opley, according to Callan, assured him that Hull could handle the re-
building of differentials and transmissions that Harris was doing and that Rice
could handle the rebuilding of axles that Denman was doing. Callan then testified
that he told Opley to select the men for discharge and give them notice. He stated
that he knew that Harris had been employed for 10 years and Denman had more
seniority than some of the other mechanics in unit overhaul, and believed that
Harris had worked on units other than transmissions and differentials, and Denman
had worked on units other than axles. He said, however, that he did not know
the extent to which they had been assigned to other work as compared with the
other mechanics in Opley's department. His contention was that he left this matter
to Opley as well as the selection of the men for layoff.
Opley testified that Vice President Jack B. Callan had asked him in the first part of
March 1960 to see whether his department could use less men in view of the
falling off of the "H" check program, that he considered the situation, and informed
Callan that he did not need a man full time on transmissions and differentials or a
man full time on axles. He later told Callan, said Opley, that the two men he selected
for the layoff were Harris and Denman, and that Hull could handle Harris' work
along with the work he was doing and that Rice could handle the axle work that
Denman was doing. Opley testified that he selected Harris because in August 1959
when he was told that he had to stay at his workbench and stop wandering around,
he was insubordinate by replying that Opley could kiss his posterior 63 if he thought
he was going to stay at the bench all the time. He then said he selected Denman
because the illness he had had made the work he was doing too heavy for him.64
sa According to Opley, Harris expressed himself in the blunt word of the vernacular of
the shop. The word "posterior" 'has been adopted by the Trial Examiner to convey what
was said.
"Vice President Callan on direct examination testified that he relied on Respondent's
Exhibits Nos 37 and 38 for the information that there would be a sharp falling off in
CENTRAL FREIGHT LINES, -INC. 437
Vice President Callan admitted that he and other officials of Respondent had
contemplated for some time transferring the "G" check operation to the Waco shop
from the branch shops, and that there would be additional work of rebuilding by
reason of the transferred operation. He did not disagree with the position of Harris
and Denman that they could do the type of rebuilding required by the "G" check
operation. He testified that he left the selection of the two employees to Opley.
According to Opley, he was sensitive about the reply Harris gave him in Au-
gust 1959 when he told him to stay at his workbench. He admitted that his repri-
mand in August 1959 was the first and the last reprimand he gave Harris. He testi-
fied that Harris stayed 2 hours at the workbench of Rice and Enders on the day in
August 1959 when he reprimanded him. He testified at first that Harris had no work
to do when he spent the 2 hours at Rice's and Ender's bench, but later testified that
he had work to do on that occasion, as did Rice and Enders, but did not have work
to do on two later occasions when he spent time there, although they had work to
do. Opley did not give the date or time of the two later occasions. Harris cate-
gorically denied that he ever spent any time at the bench of Rice and Enders or at
any other bench. He said he had too much work to do to remain idle. He testified
that he may have had occasion to look for sockets behind their workbench, although
he could not recall looking for them on that day.
Opley admitted that the sickness in December 1959 or January 1960 that affected
Denman was influenza, and that this ailment affected a good many other employees
in the shop at the time. Neither Vice President Callan nor Opley contended that
Hull or Rice were better workers than Harris and Denman. Opley admitted that
Hull had worked on differentials since Harris was discharged and that Rice had
worked on axles with Enders' assistance. Opley, in a memorandum dated April 2,
1960, stated that the Waco shop had an inventory as of that date of seven rebuilt
transmissions, seven rebuilt differentials, four rebuilt rear axles, five rebuilt front
axles, and three rebuilt idle axles. This inventory is to be compared with the need
of such rebuilt units for 26 "H" checks to be made during the period April 1960 to
March 31, 1961.
d. Concluding findings on evidence dealing with the discharges of Harris
and Denman at the Waco maintenance and repair shop
I have found that Harris was a member of the Union since May 1959, and was a
union observer at the Board-conducted election on May 1, 1959. I have found that
Vice President Jack B. Callan had suggested to Harris on May 4, 1959, that he resign
because he acted as a union observer, to which Harris replied that he would have to
fire him, and that Callan's rejoinder was that he was not ready to fire him then. I
have found that Gilbert, the Waco shop superintendent on May 4, 1960, told Harris
that by being a union observer at the Board election on May 1, 1959, he had done
something that would hurt him for the rest of his life, and that on May 18, 1959,
W. W. Callan, chairman of the Respondent's board of directors, complained to Opley
against Harris' taking offense at the continuous derogation by employee Bean of
Harris because of his union activity, but at the same time was indifferent to em-
ployees' calling Harris' wife immoral and vile names during the time when he was a
union observer at the Board-directed election on May 1, 1959. I have found that
Opley reprimanded Harris one morning in August 1959 for not staying at his work-
bench and ordered him to stop bothering other employees, and that Harris resented
this reprimand to a degree that motivated him to complain to Vice President Jack B.
Callan in Opley's presence about the reprimand Opley gave him. I have found that
Harris denied that he left his workbench to talk to other employees and to waste
time either on the morning of the reprimand in August 1959 or at any other time,
and that he testified he left his bench only to obtain tools he needed, and engaged in
a few words of casual conversation when he was on the search for the tools. I have
also found that Opley exercised much closer supervision over the employees under
him after the election than he did prior to the election.
I find that following the May 1, 1959, election, Opley in following his policy of
closer supervision saw Harris leaving his workbench on occasion to search for tools
including the search for sockets on the socket board behind Rice and Enders, and
saw Harris make a few words of casual conversation with the mechanics to whom
he made inquiry about the whereabouts of the tools I credit Harris' testimony that
"H" check work which led to the decision to reduce the crew of the unit overhaul depart-
ment by two men, and the selection of Harris and Denman for the layoff On cross-
examination, he admitted that these exhibits were not available to him when he asked
Opley to see whether there could be a reduction in his crew I find, however, that by
reason of his position, Callan had knowledge of this situation
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he did not visit Rice and Enders at their workbench on the morning he was repri-
manded by Opley in August 1959 , and his testimony that he did not leave his work-
bench on that morning. I am so persuaded by the arousal of his indignation at the
reprimand to the point where he complained to Vice President Callan about it in
Opley's presence , and the fact that this reprimand was the only reprimand that Opley
gave him in the whole of the 10 years he was his supervisor . Opley , I find , was ready
to prevent any discussion of the Union and union activity among the employees
and was of the opinion that Harris was discussing these subjects when he visited the
workbenches of the other mechanics when looking for tools. It is to be noted that on
May 4 , 1959 , Opley told Harris that he would forget that Harris had been a
union observer at the Board election on May 1 , 1959, if Harris would forget about
the Union . Opley believed Harris had not forgotten about the Union , and for this
reason he reprimanded Harris on the morning in August 1959, even though, as I
have found , Harris did not leave his workbench on that morning.
I have found that Denman was initiated into the Union in May 1959 along with
Harris and that he lived with Harris during the period August 1958 to November
1959. He began living with Harris after Opley learned he was ill at his rooming
house from ptomaine poisoning , and brought him to a hospital with Harris ' assist-
ance. Denman attended union meetings and the last one he attended was in Dallas
in March 1960.
The evidence shows that while there would be less "H " check operations in the
year from April 1, 1960, to March 31, 1961, there would still be 26 of them, and
that the rebuilt differentials , transmissions , and axles available on April 2, 1960,
were only 25 percent, more or less, of the number of these units needed for the
"H" check operation . Moreover , there would be additional rebuilt units needed for
the "G" check operation which had to be supplied by the unit overhaul department
in which Harris and Opley worked, especially since "G" check operations for trucks
and tractors used for local pickup and delivery service would be possible for the
first time in view of the vacated space consequent on the transfer of the "G" check
operations on intercity equipment to the Waco shop . Both Harris and Denman
were qualified to do this work.
It is clear and undisputed on the record that Harris and Opley were more skilled
than employees Hull and Rice who took over their work . I do not credit Opley's
testimony that he was persuaded to select Harris for discharge because Harris told
him to kiss his posterior in August 1959 , when he reprimanded him, since the
reprimand was not justified , he had not reprimanded him at any other time in the
10 years he was Harris' supervisor , and they were obviously at least shop friends
as evidenced by Opley's securing Harris' assistance in aiding Denman in July 1958
when Denman was ill . The language used by Harris, a "rough and ready" but well-
meaning employee , was not commendable , but on the other hand it was not some-
thing a shop foreman would harbor a grudge over. Two weeks before he dis-
charged Harris, Opley told him that he was pleased with his work.
While Denman was ill with ptomaine poisoning for a period in July 1958, and ill
with influenza in December 1958 or January 1959 , when it affected the Waco shop
generally and also the city of Waco, the record does not support Opley's statement
that Denman 's illness had reduced his physical strength to the point where he could
not handle the work of rebuilding axles. In any event , Respondent could well
have used Denman 's expertise as a mechanic in rebuilding subassemblies and parts
of less weight than axles. The record shows that he was skilled in rebuilding all
types of subassemblies and parts . The common use of cranes and other equipment
has made manual lifting an archaic and unused practice and the use of power tools
has likewise made unnecessary extensive manual exertion in tightening or loosening
units in the parts or subassemblies Denman worked on.
I conclude and find that Harris was slated for discharge by Respondent from the
time he acted as a union observer at the Board-conducted election on May 1, 1959.
I conclude and find that Denman was also selected for discharge to make the pretext
of a discharge for economic reasons to look genuine . Moreover , he was known to
have resided at Harris' home and to have been friendly and closely associated with
Harris.
For the foregoing reasons, I conclude and find that Harris and Denman were
discriminatorily discharged to discourage membership in the Union in violation
of Section 8(a) (3) and (1) of the Act 65
es Vice President Jack B Callan testified that on April 2, 1960, when Harris came into
his office and discussed his discharge with him, he was profane , took God's name in vain,
and was abusive. Callan said Harris was profane in calling the reasons given for the
discharge lies According to Callan, Harris also used a vulgar word Callan admitted
CENTRAL FREIGHT LINES, INC. 439
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, which occurred
in connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among. the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is engaging in certain unfair
labor practices, I shall recommend that it cease and desist therefrom and take cer-
tain affirmative action to effectuate the policies of the Act.
I have found that Respondent interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in the Act. I am convinced that the
unfair labor practices committed are related to other unfair labor practices proscribed,
and that the danger of their commission in the future is to be anticipated from the
Respondent's conduct in the past. Accordingly, in order to make effective the
independent guarantees of Section 7, and thus effectuate the policies of the Act, I
shall recommend that the Respondent cease and desist from in any manner infring-
ing upon the rights of employees guaranteed by the Act, except that this recom-
mendation does not include any proposal that Respondent be required to withdraw
or to cease continuing in effect any wage increases, pensions, or other benefits hereto-
fore in effect.
Since I have found that Respondent discriminated in regard to the hire and tenure
of employment of Leonard F. Clay, Monie Denman, Johnie D. Harris, Riley
LaComb, Robert P. Lambert, Thomas L. McCollum, James W. McEntire, Urban L.
Miller, Jr., Doyle E. Shields, W. G. Swearingen, Clois G. Taylor, and Reid A.
Thompson, and withheld wage increases from Clay, Lambert, McEntire, and Taylor,
to discourage membership in the Union, I shall recommend that Respondent be
ordered to cease and desist from discouraging membership in the Union or any
other labor organization, by discharging or refusing to reinstate employees, or in any
other manner discriminating against them in regard to their hire and tenure of em-
ployment or any term or condition of employment, except to the extent permitted
by Section 8(a),(3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959, and I shall recommend that Respondent offer to said
employees immediate and full reinstatement to their former or substantially equiv-
alent positions, without prejudice to their seniority or other rights and privileges, and
make them whole for any loss of earnings they may have suffered by reason of the
Respondent's discrimination against them, by payment to each of them of a sum of
money equal to that which he normally would have earned as wages from the date
of his discharge to the date of Respondent's offer of reinstatement, less his earnings
during said period, to be computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294, and adjust the
wages paid to Clay, Lambert, McEntire, and Taylor during their periods of employ-
ment which should have, but did not, contain wage increases that Respondent granted
to its employees but withheld from them, to reflect the amounts of these increases.
Since I have also found that Respondent discharged Robert P. Lambert because
he furnished information to, and gave testimony on behalf of, the General Counsel
under the Act in connection with Cases Nos. 23-CA-847 and 23-CA-872 of this
proceeding, I shall recommend that Respondent be ordered to cease and desist from
discharging or otherwise discriminating against an employee because he has furnished
information to the General Counsel or has given testimony in connection with this
proceeding, or any other proceeding under the Act, and to reinstate Lambert as pro-
vided in the previous paragraph.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the cases, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of the Act.
2. Chauffeurs, Teamsters and Helpers Local Union No. 393; Dallas General
that at one time or another he used all the words that Harris used on April 2, 1960
Harris denied that he was abusive There is no doubt that Harris was emotionally
aroused on April 2, 1960, when be talked to Callan because of his discharge from a job
he had performed well for 10 years. In his righteous indignation, he apparently resorted
to the vernacular of the shop, which to him was not abusive. This testimony has not
affected my determinations in this report one way or the other.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Drivers, Warehousemen and Helpers , Local Union No. 745; General Drivers, Ware-
housemen and Helpers Local Union No. 968; and Chauffeurs, Teamsters and Helpers
Local Union No. 47, all affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Independent , are labor organ-
izations within the meaning of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise of the
rights guaranteed in 'Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. By discharging some of its employees on November 7, 1958, January 6, 1959,
and January 15 and March 21 and 28, 1960 , and withholding wage increases from
some of these employees because of their union activity or membership, Respondent
discriminated against them in regard to their hire and tenure of employment and the
terms and conditions of their employment, thereby discouraging membership in the
aforesaid Unions, in violation of Section 8 (a) (3) and (1) of the Act.
5. By discharging Robert P. Lambert because he furnished information to the Gen-
eral Counsel , and testified on his behalf at the hearing in this proceeding held on
September 28, 1959, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(4) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
G. L. Webster Company, Incorporated ' and Local 822, affiliated
with the Teamsters , Chauffeurs , Warehousemen , Helpers, Mis-
cellaneous Brewery and Soft Drink Workers of America ,' Peti-
tioner. Case No. 5-RC-3410. September 06, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Robert W. Knadler,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Employer refused to stipulate that the Petitioner is a labor
organization as defined in the Act. As the Petitioner is an organiza-
tion which exists for the purpose of dealing with employers concern-
ing wages, hours of employment, and other working conditions, we
find that the Petitioner is a labor organization within the meaning of
Section 2 (5) of the Act.2
3. The Employer moved to dismiss the petition upon the ground
that the Board lacks jurisdiction of this proceeding because the in-
1 The names of the Employer and the Petitioner appear as amended at the hearing.
z Dove Manufacturing Company, 128 NLRB 778.
133 NLRB No. 45.