Clark Truck Line

National Labor Relations Board - Board Decisions

Nov 27, 1967

168 N.L.R.B. 500 (N.L.R.B. 1967)

500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clarence Caldwell Clark, an individual d/b/a Clark
Truck Line and Harry Page and Highway and
Local Motor Freight Employees , Local No. 667, af-
filiated with International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of
America. Cases 26-CA-2621 and 26-CA-2645
November 27, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On July 26, 1967, Trial Examiner Ivar H. Peter-
son issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. He also found that the Respondent had not en-
gaged in certain other unfair labor practices alleged
in the complaint and recommended that those al-
legations be dismissed. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision
and a supporting brief, and the General Counsel
filed cross-exceptions and a supporting brief. t
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the
cross-exceptions, the briefs, and the entire record
in the case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner,
only to the extent consistent herewith.
We agree with the Trial Examiner, for the
reasons stated in his decision, that the Respondent
did not violate Section 8(a)(5) by its institution of
work rules.
We do not agree, however, with the Trial Ex-
aminer's further finding that Respondent's
discharge of Page, Pickens, and Taylor for the
violation of the agreed-upon work rules violated
Section 8(a)(3) and (1).
The Respondent is engaged in transporting
freight between Memphis, Tennessee, and points in
the State of Mississippi. It maintains a terminal at
Memphis and warehouse at Pontotoc and Tupelo,
Mississippi. On August 22, 1966, an election was
held among the nine truckdrivers and
warehousemen of the Respondent, resulting in a
vote of five to four in favor of the Union. On Sep-
tember 20, as found by the Trial Examiner, the
parties held their first bargaining session and agreed
to the institution of a set of work rules, proposed by
the Respondent, regarding the handling of freight
and lost and damaged goods. The work rules were
posted on September 26 at the employees'
timeclocks and the Memphis dispatcher directed
the employees' attention to the rules. After a 6-day
grace period, Respondent began to issue letters of
violation for breaches of the posted work rules.
During the period of enforcement, Page, Pickens,
and Taylor each committed three violations and,
after having been given the prescribed warning let-
ters, were discharged in accordance with the notice
provisions.
The Trial Examiner, in finding the charges to be
discriminatory, placed a great emphasis on the dis-
proportionate number of violations attributed to the
alleged supporters of the union; i.e., the five Mem-
phis employees. The Memphis employees, who had
signed union cards and had discussed among them-
selves their interest in the union, received 11 viola-
tion letters, while the Mississippi employees
received only 1 letter. We note, however, that the
General Counsel presented no evidence that during
the period when the work rules were enforced, the
Employer was cognizant of work rule violations by
Mississippi employees but chose not to issue warn-
ing letters to them. It is true that witnesses Lakes
and Edwards testified that non-Memphis drivers
had engaged in conduct prohibited by the work
rules but had received no warning letters. However,
as the Trial Examiner correctly pointed out, these
alleged violations took place either before the post-
ing of the rules or after their enforcement was
suspended by the Respondent on the advice of its
attorney. Neither is there any dispute as to whether
the employees who received warning letters did in
fact violate the work rules. Page, Pickens, and
Taylor each committed three violations and
received a letter for each violation. Lakes com-
mitted two violations and received two letters. One
unidentified Mississippi driver committed a viola-
tion and received a letter. In short, the record is bar-
ren of any showing of disparate treatment of the
drivers or discriminatory enforcement of the rules.
All of those who received warning letters, including
the three employees discharged, did in fact violate
the posted rules. There is no evidence that, during
the period the rules were in effect, any employee
violated them without receiving a warning letter.
We therefore conclude that the General Counsel
failed to meet the burden of showing that the rules
were enforced in a discriminatory manner.
In concluding that the discharges were violative
of Section 8(a)(3) and (1), the Trial Examiner also
' Respondent moves to strike the cross-exceptions and supporting brief
filed by the General Counsel As they do not affect the outcome of these
cases, we shall deny Respondent's motion without passing on the ment of
Respondent's motion
168 NLRB No. 57
CLARK TRUCK LINE
relied on certain additional factors. He states, for
example, that no explanation for the necessity of
the rules was given to the employees collectively or
individually. However, the record clearly reveals,
and the Trial Examiner so found in his dismissal of
the 8(a)(5) allegation, that an explanation of the
necessity for the rules was given to the employees
through their duly-elected representative at the bar-
gaining session of September 20.
Another factor deemed to be significant by the
Trial Examiner was that Respondent, at the hear-
ing, offered no work records but only vague and
general testimony to show an increased incidence
of mistakes by drivers which made the work rules
necessary. However, the Union, at the first bargain-
ing session , readily concurred with Respondent's
explanation for the necessity of the rules. The Trial
Examiner, himself, credited the testimony of
Respondent's witnesses that Chief Union Negotia-
tor Augustine, upon reading the rules, commented
that the employees ought to be able to work under
them and added that the Respondent would not
"hear any complaint from us about the rules."
Furthermore, the record discloses that at the hear-
ing the General Counsel stipulated the reasonable-
ness of the rules.
Another factor relied upon by the Trial Examiner
in emphasizing the discriminatory nature of the
discharges was that Respondent was aware that the
Memphis drivers were union adherents, and
through its Terminal Manager Tucker expressed
hostility to their action in selecting the Union. The
Trial Examiner derived this conclusion from Page's
credited testimony that some 3 or 4 weeks after the
election Tucker asked Page "what was wrong with
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
501
IVAR H. PETERSON, Trial Examiner: On January 20,
1967, the General Counsel of the National Labor Rela-
tions Board , by the Regional Director for Region 26, is-
sued a consolidated complaint against Clarence Caldwell
Clark , an individual , doing business as Clark Truck Line,
herein called the Respondent , based upon charges filed
by Harry Page, an individual, and Highway and Local
Motor Freight Employees, Local No. 667, affiliated with
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , herein called
the Union , alleging that the Respondent had engaged in
unfair labor practices violative of Section 8(a)(1), (3), and
(5) of the National Labor Relations Act, as amended,
herein called the Act.' Briefly stated, the complaint al-
leged that the Respondent unilaterally promulgated new
work rules on or about September 27, 1966, without con-
sultation or bargaining with the Union , which had been
selected in a Board-conducted election the preceding
month as the exclusive representative of the employees,
and that it did so in retaliation against the employees for
having chosen the Union to represent them; and that
thereafter the Respondent discharged three employees
for violation of the new work rules and because they had
joined and assisted the Union. Pursuant to notice , I heard
the case on March 14 and 15, 1967, in Memphis , Tennes-
see, at which hearing all parties were represented and af-
forded full opportunity to participate. Briefs filed by the
General Counsel and the Respondent have been carefully
considered.
Upon the basis of the entire record in the case and from
my observation of the witnesses and their demeanor, I
make the following:
FINDINGS OF FACT
the fellows up here [in Memphis] " because they I. THE BUSINESS OF THE RESPONDENT
"had to go and vote a union in without consulting
with the Company." We cannot agree, however,
that his single statement indicates a degree of
hostility to the Union sufficient to support the find-
ing of discriminatory motivation in the discharges.
Thus, we conclude that the General Counsel has
not established by a preponderance of the evidence
that the work rules were either discriminatorily
motivated or discriminatorily enforced. Ac-
cordingly , we find that Respondent , by discharging
Page, Pickens, and Taylor, did not violate Section
8(a)(3) and (1) of the Act, and therefore dismiss the
complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
The Respondent , operating under the trade name Clark
Truck Line , is a sole proprietorship owned by Clarence
Caldwell Clark, and is engaged in transporting freight
between Memphis , Tennessee , and points in the State of
Mississippi. It maintains a terminal at Memphis and
warehouses at Pontotoc and Tupelo, Mississippi. The
Respondent admits and I find that during the 12 months
preceding issuance of the complaint it derived gross
revenues in excess of $50,000 from the interstate trans-
portation of freight , and that it is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
' The charge in Case 26-CA-2621 was filed by Page on December 5,
1966, and amended on January 20, 1967. The charge in Case
26-CA-2645 was filed by the Union on January 9, 1967, and amended on
January 20, 1967.
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Promulgation of Work Rules
On August 22, 1966,2 a Board-conducted election was
held among the nine truckdrivers and warehousemen of
the Respondent, resulting in a vote of five to four in favor
of the Union, and the Union was certified as the exclusive
bargaining representative of the unit on August 3
Leslie Darden, then counsel for the Respondent, on Sep-
tember 2 wrote to C. H. Augustine, president of the
Union , to arrange a negotiating meeting, suggesting the
parties meet during the week of September 18, preferably
September 20 or 21. Augustine replied under date of Sep-
tember 8, setting the meeting in Darden's New Albany,
Mississippi, office for September 20 at 11 a.m.
Prior to the September 20 bargaining meeting Darden
met on September 2 with the Respondent Clark and
Bobby Tucker, the Respondent's terminal manager at Tu-
pelo who also had supervisory authority over the Mem-
phis terminal, to discuss the forthcoming negotiations
with the Union. During this preliminary meeting Tucker
stated that he wished to establish work rules to coun-
teract an increasing amount of difficulty the Respondent
was having with short freight shipments and damaged
goods. Darden advised that any changes in work rules
would have to be negotiated with the Union and asked
Tucker to check what rules were customary in the indus-
try and to prepare proposed rules for presentation at the
first negotiation session. Tucker prepared the following
notice containing the proposed work rules and gave the
document, on Respondent's stationery, to Darden on
September 20, shortly before the meeting with the
Union's representatives:
NOTICE TO EMPLOYEES
TUPELO - MEMPHIS - PONTOTOC
SUBJECT: EMPLOYEE ERRORS & CARELESSNESS TOO
MANY ERRORS CONCERNING FREIGHT HANDLING
HAVE OCCURED [SiC] IN THE LAST 30 DAY PERIOD.
VIOLATIONS:
1. NOT COUNTING FREIGHT- SHORTAGES.
2. LEAVING FREIGHT AT POINT OF ORIGIN,
(SHIPPER) AFTER SIGNING CLEAR BILL.
3. LEAVING BILL, SHIPPING ORDER, AT SHIPPERS
OFFICE.
4. LEAVING FREIGHT & BILL AFTER SIGNING.
5. SIGNING BILL PICKING UP WRONG SHIPMENT
OF FREIGHT.
6. REFUSING TO PICK UP WHAT DISPATCHER
GIVES DRIVER, SUGGESTING ANOTHER TRUCK OR
DRIVER.
7. PICKING UP SHIPMENT IN BAD ORDER WITH
NO NOTATION.
8. NOT SIGNING SHIPPING ORDER, LEAVES NO
RECORD OF WHO MADE THE PICKUP.
COMPANY ACTION TO BE TAKEN:
A LETTER OF VIOLATION WILL BE PRESENTED ON
ANY OF THE ABOVE. THESE WILL BE NUMBERED
I 2 3. ON RECIEVING [SiC VIOLATION LETTER
NUMBER 3, EMPLOYEE WILL BE DISCHARGED.
CLARK TRUCK LINE
OWNER....
Representing the Union at the September 20 meeting
were Augustine and George Moore, assistant business
representative; the Respondent was represented by At-
torney Darden, his law partner Lester Sumners, and
Clark and Tucker. The testimonial versions of this meet-
ing as given by General Counsel's witnesses Augustine
and Moore, on the one hand, and the Respondent's wit-
nesses Darden and Sumners, on the other hand, are at
considerable variance both with respect to the sequence
of events and particularly as to whether or not the parties
agreed that the work rules proposed by the Respondent
were to go into effect. It becomes necessary, therefore, to
set out the conflicting versions in some detail.4
According to Augustine and Moore, the parties met at
approximately 10 a.m. and for the ensuing 2 or 2-1/2
hours, prior to lunch, discussed in some detail the provi-
sions in the Union's current printed national master
freight agreement, which Augustine had at the outset
presented as the appropriate proposal for discussion.
They further testified that shortly before the meeting was
recessed for lunch Darden presented to them several con-
tract clause proposals, including the proposed work rules.
In connection with the latter, the testimony of Augustine
is that Respondent's representatives remarked "that they
were having trouble with some of the people leaving
freight and not properly checking freight, and they
wanted something in the contract to take care of the situa-
tion." Both testified that no statement was made of an in-
tent on the part of the Respondent to place the work rules
promptly into effect. During the afternoon session Au-
gustine stated that he thought the Respondent 's proposals
were inadequate and Darden stated that the Union's
master agreement was inapplicable to the Respondent's
operation. At Darden's request, Augustine agreed to sub-
mit a new proposal , which he mailed to Darden some time
later. The meeting adjourned, according to Augustine and
Moore, with no agreement by either side on any of the
proposals of the other.
Darden's account of the September 20 meeting, cor-
roborated by Sumners and the contemporaneous notes on
the conference kept by the latter, differs in material
respects from that given by Augustine and Moore. He
testified that the morning session convened at 11 o'clock5
z Unless otherwise indicated, all dates refer to the year 1966.
I find, as alleged in the complaint and admitted in the answer , that the
appropriate unit within the meaning of Sec. 9 (b) of the Act consists of "all
truckdrivers and warehousemen employed by the Respondent at his
Memphis, Tennessee , terminal, and points of operation at Pontotoc and
Tupelo, Mississippi , excluding office clerical employees , guards and su-
pervisors as defined in the Act," and that the Union is the exclusive
representative of said unit within the meaning of Sec. 9(c)
4 Augustine and Moore, in that order, were the first witnesses called by
the General Counsel. Thereupon, by agreement of all parties the
testimony of Darden and Simmers , on behalf of the Respondent, was
taken. They ceased to be counsel for the Respondent in this matter shortly
after the September 20 meeting
5 In fixing the time the meeting began , Darden referred to the Sep-
tember 8 letter from Augustine in reply to Darden's letter of September
2, in which Augustine stated that he would "arrange to be in New Albany
on Tuesday , September 20, 1966 at I I am for this meeting in your of-
fice."
CLARK TRUCK LINE 503
and lasted only about 30 minutes. After some preliminary
discussion, the Union presented its proposal consisting of
the printed booklet containing the Union's master na-
tional freight agreement and southeastern area supple-
ment ; Augustine suggested that the supplement, which
began on page 53 of the booklet, was the portion he would
like to follow. Darden gave Augustine eight proposed
contract clauses, each on a separate sheet of paper.
About 11:30 the parties adjourned until 2 p.m., in order
that they might study the respective proposals.
When the parties reconvened in the afternoon Darden,
so he testified, stated that the Union's printed proposal
was "a rather elaborate contract" and that he would
prefer to "start out from scratch" with a new contract
rather than attempt to adapt the Union's proposal to the
needs of the Respondent. Augustine and Moore, how-
ever, said they preferred to follow the printed booklet.
Accordingly, the parties began an examination of the
Union's printed proposal, starting at page 55. When they
reached article 39, section 6, on page 59,6 Darden handed
the union representatives the proposed work rules set
forth above, stating, as he testified, that the Respondent
proposed to put them into effect "because of the problem
that we had which was the loss of freight and damage to
freight on the part of the freight handlers." Darden
testified that Augustine read the rules and then com-
mented, "Any son-of-a-bitch ought to be able to haul
freight or pick up freight under these rules."7 Darden
further testified that he told Augustine that in his opinion
the Respondent's rules "were more liberal than were his
own rules which were contained in this booklet that he
had furnished me, which required only one notice
whereas we had provided for two notices; and that we
were now handing those to him and giving him the notice
and would put them into effect the following week after
the six days had elapsed as provided in his rules."8
According to Darden, Augustine placed his copy of the
rules in a file folder and said, "You won't hear any com-
plaint from us about them." Sumners testified to the same
effect, and his notes on the meeting, to which he referred,
indicate that the discussion of the work rules began at
2:35 p.m. and that at 3 p.m. the parties began discussing
grievance procedure. Sumners' notes record the comment
attributed by Darden and Sumners to Augustine, that
"You won't hear any complaints from us" about the work
rules. Although Sumners was uncertain as to the discus-
sion concerning the time the rules would be posted, he
and Darden were positive in testifying that they definitely
understood the rules and their being placed in effect had
been accepted by the Union. The parties thereafter
turned to other matters and the meeting adjourned at 5
o'clock.
On September 26 the Respondent posted the rules at
the Memphis and Tupelo terminals. No meeting was
called to advise the employees about them, but Mary Pat-
ton, the Memphis dispatcher, directed attention to the
rules.
Following the September 20 meeting Darden and Sum-
ners ceased to represent the Respondent in the negotia-
tions. Under date of September 29, Darden wrote to Wil-
liam Fortas, of the firm of Fortas & DeHart, which firm
thereafter represented the Respondent, transmitting the
certification of the Union issued by the Board, the con-
tract-clause proposals made by the Respondent at the
September 20 meeting, a second proposal received from
the Union on September 29, and the notice containing the
work rules. Regarding the notice, Darden's letter states
that a copy thereof "was given C. H. Augustine on Sep-
tember 20, 1966, with statement that we were putting
rules into effect. Augustine and Moore concurred in this
procedure."
On October 17 the parties met for their second negotia-
tion session. Moore alone represented the Union and the
Respondent was represented by Clark, Tucker, and At-
torney DeHart, his first meeting after becoming counsel
for the Respondent. In the meantime, the Respondent
had issued five "letters of violation" of the work rules.9
On October 17 two more letters were issued, the first to
employee Joseph Lakes and the third to employee
Pickens, which also notified him that he was discharged.
Moore testified that before the bargaining session started
DeHart "informed me that employee John Pickens was
receiving a third warning notice for leaving freight."
Moore could not recall whether DeHart stated Pickens
was being discharged. Tucker, on the other hand, testified
that at the October 17 meeting the parties discussed the
impending discharge of Pickens, "that he had had three
violations and would be discharged." Tucker further
testified that "Mr. Moore made a comment something to
the order that if the violations were in order, and we were
sure he had violated what we were talking about, that we
would hear nothing from him."
Moore testified that he first learned of the posting and
enforcement of the work rules at the negotiating meeting
on November 10, at which he was the sole representative
of the Union.10 Taylor had been given his third "letter of
violation" and was discharged on November _7. Accord-
ing to Moore, at the November 10 meeting the parties
discussed the discharges of Pickens and Taylor and the
impending discharge of Page,J" DeHart taking the posi-
tion that Augustine had agreed to the work rules going
into effect at the September 20 meeting, while Moore as-
serted that there had been no agreement on the rules.
Moore requested that the Union be furnished with copies
of the warning letters, and he received these on
November 18. At a further meeting on November 21
Moore informed the Respondent's representatives that it
would be practically impossible to consummate a collec-
tive-bargaining agreement unless the three discharged
employees were reinstated. Thereafter the Respondent,
upon advice of counsel, discontinued issuing "letters of
violation" and in effect suspended enforcing the work
rules pending disposition of the present unfair labor prac-
tice charges.
6 This provision reads as follows:
The employer is permitted to make and enforce any reasonable Com-
pany rules which do not conflict with the provisions of this Agree-
ment; all such rules to be posted for a period of six (6) days before
becoming effective and Union to be furnished a copy of such rules.
' On cross-examination, Augustine denied that he made this or any
similar comment with reference to the Respondent's proposed rules.
8 In characterizing the Respondent 's rules as more liberal than the
Union's Darden had reference to article 43 of the Union's printed booklet,
which required "at least one warning notice ... in writing" before discipli-
nary action could be taken in regard to matters other than certain specified
conduct as to which no warning notice was required.
9 These five warning notices were issued October 10. Harry Page had
been given two; John Pickens, two; and Sug Taylor, one.
10 Augustine had met with Respondent 's representatives on October 31
and Moore had been the Union's only representative at a meeting on
November 7. Both testified that on neither of these occasions were the
Respondent 's work rules discussed.
" Page was discharged on November 11 for a third violation of the
work rules that had occurred several days earlier.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Discharges
The notice posted on September 26 set forth eight
violations of basic work duties in connection with han-
dling freight and provided that "a letter of violation will
be presented on any" of the violations, and stated that
upon receiving the third letter of violation the employee
"will be discharged." Although the listed "violations"
established no new duties in regard to the handling of
freight and employees in the past had been told that
proper performance of their job entailed avoiding making
the mistakes now listed as "violations," it is clear that
prior to the notice there existed no rule or practice of noti-
fying employees in writing of improper work performance
and no rule that a third violation would result in
discharge.
John Pickens, who was given notice of a third violation
and discharged on October 17, had been in the Respond-
ent's employ as a truckdriver at the Memphis terminal
since April 1965. On October 10 he had been given the
first two notices of violation of rules. The first of these
stated that on October 4 he had picked up a shipment of
drugs and failed to note on the shipping order that it was
two cartons short. Although Pickens disputed this when
testifying, Tucker supported the charge contained in the
letter with documents he had before him while testifying.
I accept Tucker's testimony that Pickens had made the
error attributed to him. The second letter related to an in-
cident on October 7, when Pickens failed to sign the
shipping order on a particular shipment. Pickens admitted
he had not signed the document. The final letter, which
Pickens admitted was correct, stated that on October 14
he signed for four pieces of freight but picked up only
three, and that 3 days later the missing piece was found at
the shipper's dock.
Pickens testified that before the rules were posted he
had on occasion made errors similar to those charged to
him as violations but had never been threatened with
discharge therefor. On one occasion, Clark, the owner,
complimented him on his work, stating that he thought
Pickens was a good pickup and delivery man.
Sug Taylor went to work as a truckdriver at Respond-
ent's Memphis terminal in July 1965. His first "letter of
violation" was issued October 10, 1966, and recited that
on October 7 he picked up three shipments and in each
instance failed to sign the shipping order. Taylor testified
that this incident "possibly" could have happened, and
stated that before the rules were posted he "never did
sign my turn in copies" and had not been reprimanded for
failing to do so. The second letter, dated October 26,
charged him with leaving 1 piece of an 11-item shipment
on the shipper's dock. Taylor admitted so doing. The final
letter, issued November 7, stated that on November 2 he
picked up a shipment consisting of 12 cartons, which
checked out 1 carton short. Taylor recalled picking up 12
cartons and being 1 short; he testified that possibly 1 car-
ton was lost because the truck he was driving had no tail-
gate. When Taylor received his second letter Tucker
urged him not to make any more mistakes as he would be
discharged if he received a third letter.
Harry Page was hired as a truckdriver at the Memphis
terminal on March 7, 1966, and was discharged on
November 11 when he received his third violation letter.
According to Page, about 3 or 4 weeks after the Union
had won the election Tucker engaged him in conversa-
tion, asking "what was wrong with the fellows up here."
Page asked what Tucker meant, and Tucker replied,
"You had to go and vote a union in without consulting
with the Company." Page explained that the hours were
bad and wages were low and that he personally had not
been allowed by the dispatcher to leave at 6 o'clock dur-
ing a week in order to attend church services. Tucker ad-
mitted having a conversation with Page in which the latter
complained about not being permitted to leave early to at-
tend church services, but denied asking Page what was
wrong with the Memphis employees or making any
reference to the Union. I credit Page, who impressed me
as a credible witness and whose version of the conversa-
tion seemed more plausible than Tucker's.
The first two letters of violation relating to Page were
issued October 10. One asserted that on October 7 he
failed to sign a shipping order pertaining to a particular
shipment. The other stated that on October 6 he picked
up a shipment which checked out one carton short. The
evidence indicates that Page did commit these errors. The
final violation letter of November 11 charged Page with
failing to turn in a shipping order on a shipment he picked
up November 3. Page acknowledged that he apparently
had lost the shipping order and that he had gone back to
the shipper some days later and obtained a photocopy.
Before enforcement of the work rules was suspended
following the discharge of Page, Joseph Lakes, the
remaining truckdriver at the Memphis terminal who had
been one of the five unit employees at that terminal when
the rules were placed in effect, had received two letters of
violation, one on October 17 and the other on November
7. Lakes admitted that he had made both mistakes. The
fifth Memphis unit employee, Arthur Lee Edwards,
worked as a warehouse checker and not as a truckdriver
during the period here relevant, and apparently because
of the nature of his job no letter of violation was issued to
him. Lakes and Edwards were still employed at the time
of the hearing.
According to the testimony of Lakes and Edwards, the
four truckdrivers who were based in Tupelo and Pontotoc
and hauled freight between those points and Memphis,
also violated the work rules but received no warning let-
ters. However, in fixing the time when these alleged
breaches of the rules occurred, Edwards placed them as
taking place either before the rules were posted or after
their enforcement was suspended. Terminal Manager
Tucker testified that one of the Mississippi drivers was
given a letter of violation. Explaining why the higher in-
cidence of violation occurred among the Memphis
drivers, Tucker testified that part of the freight originating
in Mississippi was loaded by the shippers, and that there
were more small shipments and pickups made in Mem-
phis, involving a larger number of freight bills, destined
for Mississippi points, than vice versa.
Tucker testified that in the period before the rules were
posted there had been a gradual increase in the number of
errors made by employees, which he attributed to care-
lessness; however, he could give no more specific esti-
mate or description of the magnitude of the problem than
to say that "it was just an overall problem that was getting
worse." Although he had, prior to posting the rules,
talked to individual employees "on a lot of occasions"
about mistakes they made, he did not call them together
to explain the rules or why they had become necessary.
C. Concluding Findings
On the question whether the Respondent unilaterally
promulgated the work rules and thereby violated Section
CLARK TRUCK LINE 505
8(a)(5) of the Act, I am persuaded that upon analysis the
preponderance of the credible evidence establishes that
the rules were placed in effect with the consent of the
Union. In reaching this conclusion I have relied primarily
upon the testimony of Darden and Sumners, in
preference to that of Augustine and Moore , regarding
what happened at the negotiating meeting of September
20, because their version impressed me as more con-
sistent with the probabilities and the objective facts.
Considering that Augustine in his letter of September
8 to Darden had fixed the time of the September 20 meet-
ing at 11 o'clock, I accept Darden's testimony that the
meeting began at approximately that hour rather than
about 10 o'clock as Augustine and Moore testified. Since
both parties had written contract proposals , the more
likely procedure would be, as Darden testified , that these
were exchanged early in the meeting rather than that the
first 2 or so hours prior to lunch would be spent in
discussing the Union 's proposals , as the union represent-
atives testimony would have it, with the Respondent
submitting its proposals just before adjournment for
lunch. I find that the morning session lasted only about 30
minutes, that the parties exchanged proposals , and then
adjourned until 2 o'clock in order that each side might
have time to study the proposals submitted by the other.
I further find that early in the afternoon session, as the
parties were considering the provision in the Union's
proposal (article 39 , section 6) permitting the employer
"to make and enforce any reasonable Company rules,"
Darden gave a copy of the Respondent 's proposed work
rules to the Union's representatives and stated that the
Respondent proposed to place them in effect the follow-
ing week after being posted for a period of 6 days in con-
formity with the requirements in the Union's printed
proposal.
Upon analysis, I find the evidence establishes that Au-
gustine raised no objection to the rules and concurred in
Darden's announced intention of placing them in effect
promptly. In view of the fact that the rules were in the
form of a notice to employees and prescribed the penal-
ties for violation, rather than in the form of a contract
clause , it does not seem likely that in presenting them
Darden would state, as Augustine testified , that the
Respondent "wanted something in the contract" to deal
with the situation to which the rules were addressed.
Rather it seems more plausible that Darden, as he
testified , stated that the Respondent proposed to put the
rules into effect the following week. I credit the testimony
of Darden and Sumners that Augustine , upon reading the
rules, commented in substance that employees ought to
be able to work under them and added that the Respond-
ent would not "hear any complaint from us about" the
rules. Further supportive of the view that the rules were
agreed to by the Union is Darden 's letter of September
29 to Fortas , transmitting the relevant documents in con-
nection with the negotiations had up to that time , in which
Darden stated that on September 20 the rules were given
to Augustine "with statement that we were putting rules
into effect" and that "Augustine and Moore concurred in
this procedure ." Moreover , at the October 17 meeting
the fact that employee Pickens was that day receiving his
third warning notice was discussed . I credit Tucker's
testimony that Moore was then informed that Pickens
was being discharged and that Moore remarked that if
Pickens had committed the violations no objection would
be made by the Union.
I conclude that at the September 20 meeting the
Respondent did inform the Union of its desire and inten-
tion to place the work rules into effect the following week.
I further find that the Union's representatives agreed to
this proposal. Accordingly, it will be recommended that
the allegation that Respondent changed employees' "ex-
isting terms and conditions of employment ... without
notification, consultation or bargaining with the Union by
unilaterally promulgating new rules and regulations af-
fecting the conditions of employment of its employees,"
thereby violating Section 8(a)(5) of the Act, be dismissed.
The fact that the Respondent discussed the work rules
with the Union and obtained the Union's consent to their
adoption does not, however, establish that the Respond-
ent's motive in promulgating and enforcing the rules,
resulting in the discharge of three out of nine unit em-
ployees in a few weeks, was wholly nondiscriminatory. I
am persuaded that the Respondent's purpose, in substan-
tial part, was to retaliate against its Memphis employees
for designating the Union as their bargaining representa-
tive. The following considerations lead me to this conclu-
sion.
There can be little doubt that the Respondent, at least
after the Union was selected as bargaining representative
by a vote of five to four out of a unit of nine employees,
was aware that the five Memphis-based employees were
union supporters. They signed union cards and discussed
among themselves their interest in bringing in the Union.
There is no evidence that any of the four drivers based
out of Memphis had indicated any support for the Union;
indeed one of them, Shirley McGlaun, who had been with
the Respondent some 30 years, told Page that "if I
[Page] didn't have anything to do with the Union, I had
a job." Some 3 or 4 weeks after the Union won the elec-
tion Tucker, the Tupelo manager, asked Page "what was
wrong with the fellows up here," referring to the Mem-
phis employees, because they "had to go and vote a union
in without consulting with the Company." According to
the undenied and credited testimony of Arthur Edwards,
who was the warehouse checker and the only Memphis
employee not to receive a warning letter (probably
because his job was in the warehouse and the work rules
pertained primarily to operations of pickup and delivery
drivers), Clark, the owner of the business, at a time Ed-
wards fixed as about 2 months before the hearing, asked
Edwards if he did not "have better knowledge than to fool
with people like" Page and James Hall, a union represent-
ative; and that Clark added that if Edwards and Joseph
Lakes continued to "fool around with Harry [Page] and
James Hall, pretty soon you won't have no jobs," because
Clark might go out of business.12
The testimony of Tucker regarding the necessity for in-
stituting the work rules impressed me as vague and
generalized. According to him, during the 30-day period
preceding the posting of the rules there had been a
marked increase in employee mistakes in connection with
handling of freight. However, he was unable to be specific
and produced no documentation to substantiate his con-
clusionary statement. It is clear, however, that the
Respondent maintained documents which would reveal
11 Edwards further related that Clark attributed to Page talk "about
putting sugar in the trucks and blocking up the road trucks and stuff like
that," to which Edwards replied that he had heard no such talk.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
errors of the sort covered by the rules, since Tucker in
several instances referred to such records in establishing
that some of the employee errors for which violation let-
ters had been issued had in fact occurred. Although the
problem had existed for some time and Tucker claimed to
have spoken in the past "on a lot of occasions" to in-
dividual drivers about their mistakes, when the rules were
posted employees were not called together or spoken to
individually with a view to instructing them in the proper
performance of their duties or impressing upon them that
a continuation of errors would result in discharge when
the third violation occurred.
In view of the laxity in operations that had been
tolerated in the past and the evident frequency of em-
ployee errors of the character covered by the rules, a pre-
dictable result of merely posting and rigidly enforcing
them would be that in short order employees would have
received enough letters of violation to require their
discharge, without achieving the stated objective of
reducing employee mistakes. This is precisely what hap-
pened. Although Tucker testified that the rules were not
enforced for the first 6 days after being posted, ostensibly
in order that employees might become "familiar with
these rules and understand what we were doing," no such
explanation was given the employees nor did the rules as
posted state when they became effective. On October 10,
five letters of violation were issued, covering mistakes
committed by three drivers between October 4 and 7, in-
clusive. Thus within less than a week after the rules were
put in effect two of the four Memphis drivers, Page and
Pickens, had two violations each, and a third (Taylor) had
one. A week later, on October 17, Pickens was
discharged upon receiving his third letter, and Lakes was
given his first letter. On October 26, Taylor received his
second letter; on November 7, a third letter was given
Taylor and he was discharged, while Lakes received his
second letter. Thus in the first month the rules were in ef-
fect, two out of the four Memphis drivers had been ter-
minated and each of the remaining two was one violation
away from termination. Page was discharged 4 days later,
leaving Lakes one step away from the same fate. While
this rapid erosion of the Memphis staff was taking place,
the most that appears with respect to the same number of
drivers based in Mississippi is that one of them received
a violation letter.13 That the four Memphis drivers would
receive 1 I violation letters in the same period that only I
letter was being given to the four Mississippi drivers is a
circumstance which I believe is not due to chance or ex-
plained by the fact that the Memphis drivers picked up
and delivered more items of freight. I infer that the dis-
proportion finds its explanation in substantial part in the
fact that the five Memphis employees were supporters of
the Union and known to be such by Clark and Tucker,
whereas the Mississippi drivers had not been instrumen-
tal in bringing in the Union as the employees' representa-
tive.
Considering that the work rules were instituted within
a short time after the Union was certified; no explanation
of the necessity for them was given to employees collec-
tively or individually; the alleged increased incidence of
mistakes during the 30-day period prior to their posting
was not supported by available work records but only by
vague and general testimony; a disproportionate number
of violations were attributed to supporters of the Union,
and the Respondent was aware that the Memphis drivers
were union adherents and through Tucker had expressed
hostility to their action in selecting the Union, I am per-
suaded that a significant factor motivating the promulga-
tion and enforcement of the work rules was a purpose to
retaliate against the Memphis employees for choosing the
Union to represent them. Accordingly, I find that by
discharging Pickens, Taylor, and Page, the Respondent
unlawfully discriminated against them and thereby vio-
lated Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent found to constitute
unfair labor practices as set forth in section III, above,
occurring in connection with the Respondent's operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in un-
fair labor practices violative of Section 8(a)(3) and (1) of
the Act, I shall recommend that the Respondent cease
and desist therefrom and take appropriate affirmative ac-
tion in order to effectuate the policies of the Act.
Since I have found that the Respondent discriminatori-
ly discharged John Pickens, Sug Taylor, and Harry Page,
I shall recommend that the Respondent offer them im-
mediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them
whole for any loss of earnings they may have suffered
from the date of the discriminatory discharge to the date
of the Respondent's offer of reinstatement. The backpay
shall be computed in accordance with the formula ap-
proved in F. W. Woolworth Company, 90 NLRB 289,
with interest at the rate of 6 percent per annum, as pro-
vided in Isis Plumbing & Heating Co., 138 NLRB 716.
I shall also recommend that the Respondent preserve
and, upon request, make available to the Board, payroll
and other records necessary to facilitate the computation
of backpay due.
As the unfair labor practices committed bythe Respond-
ent are of a character striking at the root of employee
rights safeguarded by the Act, I shall recommend that the
Respondent cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the
Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Clarence Caldwell Cliark, d/b/a Clark Truck Line,
is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
11 Tucker's testimony to this effect is unsupported by a copy of the
letter and he did not identify the driver or state when the letter was issued.
CLARK TRUCK LINE 507
2. Highway and Local Motor Freight Employees,
Local No. 667, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(3) and (1) of
the Act by discharging John Pickens, Sug Taylor, and
Harry Page, on October 17 and November 7 and 11,
1966, respectively.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. In other respects alleged in the complaint, the
Respondent has not engaged in unfair labor practices.
[Recommended Order omitted from publication.]