E. B. Law and Son

National Labor Relations Board - Board Decisions

Dec 20, 1950

92 N.L.R.B. 826 (N.L.R.B. 1950)

In the Matter of EARL B. LAW AND DONALD T. LAw D/B/A E. B. LAW
AND SON 1 and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL No. 941,
AFL
Case No. 33-CA-29.-Decided December 20, 1950
DECISION AND ORDER
On July 19, 1950, Trial Examiner Eugene F. Frey issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respond-
ents filed exceptions to the Intermediate Report and a supporting
brief.
The Board 2 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
•affirmed.3 The Board has considered the Intermediate Report, the
exceptions and brief, and the entire record in the case, and hereby
adopts the findings , conclusions , and recommendations of the Trial
Examiner, with the exceptions, modifications, and additions set forth
below.4
1. The Trial Examiner, in arriving at his conclusion that the Re-
spondents discriminatorily discharged driver Jones, found that the
1 The Respondents were designated in the complaint as E. B . Law and Son. As the
Trial Examiner found that E. B. Law and Son is, and has been since October 3, 1947,
a partnership consisting of Earl B . Law and Donald T. Law, and as there is no exception
to this finding , we have amended the designation accordingly.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Members Houston, Murdock, and Styles].
• 8In their exceptions and brief , the Respondents renewed their objections to this pro-
ceeding and their motion to dismiss , made at the hearing, on the ground that the Gen-
eral Counsel did not prove compliance by the Union with the filing requirements of
Section 9 ( f), (g), and (h)' of the Act . As stated by the Trial Examiner, the Board has
consistently held that compliance with these requirements is not a litigable issue. Ac-
cordingly the Trial Examiner 's rulings in this - regard are affirmed and the renewed
motion to dismiss is hereby denied . Intertown Corporation ( Michigan ), 90 NLRB 1145 ;
Ray Smith Transport Company, 89 NLRB 1045.
4 We have carefully considered the entire record in this case, and find that the Re-
spondents ' allegations that the Trial Examiner was biased against them are without
merit. Accordingly, we hereby overrule the Respondents ' exceptions in this regard.
92 NLRB No. 136.
826
E. B. LAW AND SON 827
"Respondent has not sustained the burden of proving that Jones
was the sole or proximate cause of the damage" to the Respondent's
equipment. On the ground that the Trial Examiner thus placed the
burden of proof upon the Respondents, they have excepted to this
finding, as well as to various other findings of the Trial Examiner to
the effect that the record does not affirmatively establish as to drivers
Jones and McClure certain alleged misconduct in the use of equip-
ment or shortcomings in the performance of their duties.
It is well settled that the burden of proving the commission of un
fair labor practices rests at all times upon the General Counsel.' How-
ever, we have carefully examined the Intermediate Report, and have
independently considered the entire record herein, and it is clear that
the burden referred to by the Trial Examiner was the burden of going
forward with evidence adequate to rebut the prima facie case estab-
lished by the General Counsel.
The Respondents have excepted also to the Trial Examiner's find-
ings, with regard to the discharge of Jones and McClure, on the fur-
ther ground that, in evaluating their alleged misconduct or inefficiency,
he sought to substitute his own judgment for that of the Respondents,
thereby impinging on the Respondents' managerial prerogatives. As
the General Counsel had established a prima facie case of discrimina-
tion, it became necessary for the Trial Examiner to determine whether
or not the reasons advanced for the discharges were the true reasons
or mere pretexts. We are satisfied that the Trial Examiner's purpose
in evaluating the reasons advanced by the Respondents for the dis-
charge of Jones and McClure was not to substitute his own judgment
for that of the Respondents, but to ascertain whether or not the dis-
charges were illegally motivated. In any event, we have reviewed the
entire record and are of the opinion that it establishes that the Re-
spondents' motive in discharging Jones and McClure was to discourage
organization of the Respondents' employees.6
2. The Trial Examiner found that since April 1949, truck dis-
patcher J. Dean Wingert performed such duties and exercised such
authority at the Respondents' Las Cruces terminal as to indicate to the
employees there that he was acting as a representative of management,
and that he was in fact a supervisor within the meaning of the Act.
The Respondents have excepted to these findings.
Wingert, who had been working for the Respondents as a truck
driver, was transferred in 1947,' at an increase in salary, from their
Lordsburg terminal to their Artesia, New. Mexico, terminal as a truck
dispatcher. At-Artesia he was a supervisor with power to discipline
TV. C. Nabors Company, 89 NLRB 538.
Cf. Des Moines, Springfield and Southern Route, 78 NLRB 1215, 1218.
This date is based on Wingert's testimony . The Trial Examiner indicated that the
transfer took place in 1948.
Wingert had been working for the Respondents or their predecessor since 1943.
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or discharge drivers. Wingert was transferred in April 1949 to the
Las Cruces operation to be trained to take the place of Earl Law, who
was ill, and to assume some of Donald Law's managerial responsi-
bilities. At the time of the hearing, Wingert had assumed some of
these responsibilities. The record however, does not establish Win-
gert's actual or apparent supervisory authority at the time of events
here in issue. Thus, the record does not show what managerial or
supervisory functions Wingert exercised at Las Cruces," that drivers at
Las Cruces had had occasion to stop at Artesia during Wingert's
tenure there as a supervisor, that they otherwise acquired knowledge
of his supervisory status at Artesia, or that the employees knew that
Wingert was being groomed for a managerial or supervisory position
at Las Cruces. Accordingly, we reject the Trial Examiner's findings
that Wingert was a supervisor at Las Cruces or was held out as such
by the Respondents.
However, the record does establish that Wilgert, in the presence
of partner Donald Law, told driver Moore to sign the sheet polling
employees as to whether or not they desired a union, and explained
to Moore the purpose of the poll10 Donald Law did not disavow nor
disassociate himself from this conduct. On the contrary, he pre-
sented the poll sheet to Moore for his signature. Moreover, on the
morning of May 5, 1949, the date of the union meeting, Wingert
asked Moore where the union meeting was to be held. Upon Moore's
refusal to reveal the meeting place, Wingert said, "You just as well
as tell me anyway because I. am going to find out, because we are
going to make all the drivers places tonight." Moore then disclosed
that the meeting was to be held at driver Jones' house. Later that
day, partner Earl Law told driver England that there was to be a
meeting at Jones' house and that he had Jones' check "wrote out,"
which indicated that Jones was to be discharged. On the same day,
partner Donald Law referred to the union meeting, in the presence
of driver Deaton; Wingert later called to Deaton's attention that
Jones' final pay check had been made out. That evening Carl Law,
a brother of Respondent Earl Law, appeared at Jones' home. The
following day, May 6, Earl Law asked Jones "how did the meeting
go last night?" and discharged him. Earl Law discharged McClure
the' same day, telling him he knew that McClure had not actually
attended the meeting.'1 Under all the foregoing circumstances, and
8 In this connection , See New England Transportation Company, 90 NLRB 539. Although
the record shows that Wingert as dispatcher assigned runs to the drivers at Las Cruces,
it was the Respondents ' policy to alternate a long run with a short run.
s Although there is testimony in the record to the effect that all drivers traveled all
runs , it appears that such references are to runs from the Las Cruces terminal.
io Wingert testified at the hearing , "We were trying to find out how many boys wanted
'Yes' and 'No' [Union]."
The employees thus had reason to believe that the Respondents had learned through
Wingert , that the meeting was to be held at Jones' house.
E. B. LAW AND SON 829
on the basis of the entire record, we are of the opinion, and we find,
that Wingert was acting with the authority of the Respondents in the
commission of the acts which we find, as did the Trial Examiner,
violated Section 8 (a) (1).
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents, Earl B. Law and Donald
T. Law, d/b/a E. B. Law and Son, Las Cruces, New Mexico, their
.agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Interrogating their employees either orally or in writing re-
garding their interest in, affiliation with, and activities on behalf of,
the Union ; threatening their employees with loss of employment, or
reduction in working hours or pay, if they affiliate with the Union;
threatening to discharge employees if they attend union meetings or
-talk to union representatives ; threatening to sell, give away, or store
:its equipment if the Union organizes its employees; engaging in sur-
veillance of the union activities of their employees;
(b) Discouraging membership in International Brotherhood of
'Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local
No. 941, AFL, or in any other labor organization of their employees,
by discriminatorily discharging and refusing to reinstate any of their
employees or by discriminating in any other manner in regard to
their hire and tenure of employment, or any term or condition of
employment ;
(c) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist International Brotherhood
.of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
.Local 941, AFL, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such activi-
ties, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to W. Cleo Jones and J. D. McClure immediate and full
reinstatement to their former or substantially equivalent positions,
-without prejudice to their seniority and other rights and privileges;
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make whole W. Cleo Jones and J. D. McClure, in the manner
set forth in Section V of the Intermediate Report, entitled "The
remedy," for any loss of pay they may have suffered as a result of the
Respondents' discrimination against them;
(c) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records .and
reports, and all other records necessary to analyze and compute the
amounts of back pay due and the right of reinstatement under the
terms of the Board's order;
(d) Post at their main office and their three terminals in New
Mexico copies of the notice attached hereto and marked Appendix
A.12 Copies of said notice, to be furnished by the Regional Director
for the Sixteenth Region, shall, after being duly signed by Respond-
ents' representative, be posted by the Respondents immediately upon
receipt thereof and maintained by them for sixty (60) consecutive
days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by Respondents to insure that said notices are not altered,
defaced, or covered by any other material ;
(e) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
APPENDIX A
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, we hereby notify our employees that:
WE WILL NOT discourage membership in INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARSHOUSEMEN AND
HELPERS OF AMERICA, LOCAL No. 941, AFL, or in any other labor
organization, by discriminatorily discharging and refusing to
reinstate any of our employees, or by discriminating in any other
manner in regard to their hire and tenure of employment, or any
term or condition of employment.
WE WILL NOT interrogate our employees, either orally or in
writing, regarding their interest in the above Union, or their
affiliation with or activities on behalf of the Union; threaten our
employees with loss of employment, or reduction in working
12 In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted in the notice before the words, "A Decision and Order ," the words,
"A Decree of the United States Court of Appeals Enforcing."
E. B. LAW AND SON 831
hours or pay, if they affiliate with the Union; threaten to dis-
charge any of our employees if they attend union meetings or
talk with representatives of the Union; threaten to sell, give
away, or store our equipment if the Union organizes our em-
ployees; engage in surveillance of our employees in their union
activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organ-
ization, to form labor organizations, to join or assist INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARSHOUSE-
MEN AND HELPERS OF AMERICA, LOCAL No. 941, AFL, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, to engage-in concerted activities for
the'purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all of such activities, except to
the extent that such right may be affected by an ' agreement re-
quiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL OFFER to the employees named below immediate and
full reinstatement to their, former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges, and will make them whole for any loss of pay suffered
as a result of the discrimination against them :
W. Cleo Jones
J. D. McClure
All of our employees are free to become, remain, or refrain from
becoming, members of the above-named union or any other labor
organization, except to the extent that this right may be affected by
an agreement in conformity with Section 8 (a) (3) of the amended
Act. We will not discriminate in regard to the hire or tenure of
employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such
labor organization.
E. B. LAW AND SON,
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.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Mr. James P. Wolf, for the General Counsel.
Messrs. R. C. Garland and E. Forrest Sanders, of Las Cruces, N. M., and Mr.
Donovan N. Hoover, of Santa Fe, N. M., for the Respondent.
Mr. Thomas U. Wolfe, for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed May 9, 1949, by Truck Drivers; Chauffeurs, Ware-
housemen and Helpers Local Union No. 941, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL,'
herein called the Union, the General Counsel for the National Labor Relations
Board, called herein respectively the General Counsel and the Board, by the
Regional Director for the Sixteenth Region (Fort Worth, Texas), issued a
complaint dated April 6, 1950, against E. B. Law and Son, herein called the
Respondent, alleging that it had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and (3)
and Section 2 (6) and (7) of the National Labor Relations Act as amended,
61 Stat. 136, herein called the Act. Copies of the complaint and the charge,
together with notice of hearing thereon, were duly served upon the Respondent
and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the Respondent discharged W. Cleo Jones and J. D. McClure on or about
May 6, 1949, and thereafter refused to reinstate them, because they had joined
or assisted the Union or engaged in other concerted activities for the purpose
of collective bargaining and other mutual aid or protection, and that Respondent,
through its officers, agents, and employees, from about April 1949 interrogated
its employees concerning their union affiliations, threatened and warned its
employees to refrain from assisting the Union or becoming or remaining mem-
bers of the Union, and kept under surveillance the meeting places, meetings, and
.activities of the Union or the concerted activities of Respondent's employees.
Respondent filed an answer admitting the discharges of the employees named
in the complaint, but denying that it had committed any unfair labor practices
as alleged. The answer also admitted certain actions by Respondent in polling
its employees regarding their desires as to union membership, which will be
discussed at length in a later section of this Report.
Coincident with the filing of its answer, Respondent filed a motion with the
Regional Director for a 60-day continuance of the hearing, which was denied
by the Regional Director on April 18, 1950.
Pursuant to notice, a hearing was held on May 9, 10, 11, and 12, 1950, at Las
Cruces, New Mexico, before the undersigned Trial Examiner, duly designated
by the Chief Trial Examiner. The General Counsel and the Respondent were
represented by counsel, and the Union by its representative. All parties par-
ticipated in the hearing, and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing upon
the issues.
At the beginning of the hearing Respondent moved that, the hearing be. sus-
pended upon the ground that the Trial Examiner was without' jurisdiction to
proceed in the matter until the General Counsel had proven that the Union had
complied with Section 9 (g) and (h) of the Act, contending that the filing
requirements of that section were mandatory and jurisdictional. Upon the same
? The name of the Union as stated only in the charge.
E. B. LAW AND SON 833
ground Respondent also objected to the introduction in evidence of the formal
pleadings consisting of the original charge, complaint, notice of hearing, and
proofs of service of those papers. Both motions were denied by the, Trial
Examiner 2 4
At the outset of the hearing Respondent invoked the rule for sequestration of
witnesses, which was applied by the Trial Examiner to exclude all witnesses of
General Counsel and Respondent except the union representative and the dis-
charged employees named in the complaint and the two partners in Respondent
partnership. A motion of General Counsel to amend the complaint to change
the date of an alleged threat by Respondent to an employee from May 20, 1949,
to May 6, 1949, was granted without objection. A motion of General Counsel
to require Respondent to amend its answer to state "a short and simple state-
ment of the facts which constitute the grounds of defense" on the authority of
Rule 203.20 of the Board was denied by the Trial Examiner.'
During the course of the hearing a motion of General Counsel to amend para-
graph 7 of the complaint by adding a subparagraph G setting forth an allegation
of certain statements by the partners of Respondent to the union representative
on April 25, 1949, was granted.
At the close of the General Counsel's ease-in-chief, Respondent moved to
dismiss the complaint upon the grounds that the charging party had failed to
prove compliance with Section 9 (f), (g), and (h) of the Act, and that General
Counsel had failed to prove his case by a preponderance of the evidence. The
motion was denied with leave to renew at the close of the hearing. At the
same time Respondent moved that General Counsel be required to proceed with
the introduction of proof as to the employment and earnings of the discharged
employees'after the date of their discharge, upon the ground that the Federal
Rules of Civil Procedure required that all pertinent issues in an administrative
hearing be tried in one hearing, to avoid a multiplicity of suits. This motion
was denied.'
At the close of the hearing Respondent renewed its motion to dismiss the
complaint on the grounds previously stated, and also on the ground the General
Counsel had failed to sustain the allegations of his complaint. Decision on that
motion was reserved; the motion is hereby denied for the reasons and upon the
considerations set forth in this Report. All parties waived oral argument at the
close of the hearing. All parties were afforded an opportunity to file briefs and
proposed findings of fact and conclusions of law or both. The Respondent has
filed a brief which has been given careful consideration in the preparation of
this Report. Respondent also filed with the Trial Examiner proposed findings
of fact and conclusions of law ; the Trial Examiner has adopted proposed find-
ings Numbers 9 and 10, has rejected all others submitted, and has also rejected
all the proposed conclusions of law, for the reasons set forth in this Report.
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following :
2The Board has consistently held that compliance with Section 9 (f), (g), and (h) of
the Act is not a litigable issue. Ray Smith Transport Company, 89 NLRB 1045; Shawnee
Milling Company, 82 NLRB 1266.
8 Similar rulings have been affirmed by the Board in cases where the Respondent's answer
contained a bare-denial of the unfair labor practices alleged. See The Solomon Company,
84 NLRB 226; Highland Park Manufacturing Company, 84 NLRB 744.
'The Board has uniformly held that the resolution of the amount of back pay, if any,
due to an employee discharged in violation of the Act, is a matter for investigation by the
parties and the Board in the compliance stage of the proceeding. See Montgomery Hard-
wood Flooring Company, Inc., 72 NLRB 113, 115; The Cuffman Lumber Company, Inc.,
82 NLRB 296, 300. .
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is and has been since Cktober 3, 1947, a partnership consisting
of Earl B. Law and Donald T. Law, duly organized and existing under the laws
of, the State of New Mexico, having .its principal office and place of business
in the city of Las Cruces, county of Dona And, State of New Mexico. At all
times mentioned in the pleadings and the record, Respondent has been engaged
in the transportation of petroleum products, including gasoline, light oils,
kerosene, Diesel fuel, and other related products in the State of New Mexico,
and in interstate commerce between various points in the States of Texas, New
Mexico, and Arizona, as a common carrier by motor vehicle for hire. In this
business Respondent operates a fleet of 17 tank trucks for the transportation
of petroleum products under an Interstate Commerce Commission certificate No.
MC-106278 which permits Respondent to transport such products in tank trucks
in bulk from the El Paso, Texas, commercial zone to'certain specified counties
in the State of New Mexico, and to all points in the State of Arizona on and
south of United States Highway No. 60. During 1948 and 1949, Respondent
received temporary authority from the Interstate Commerce Commission in
cases of emergency to transport petroleum products into the northern part of
the State of Arizona and to other points outside the area of operations authorized
by its basic permit from the Commission. During 1949 Respondent's total gross
receipts from the use of its trucking facilities amounted to approximately
$338,371, of which approximately 40 percent was received for the transportation
of petroleum products in interstate commerce. In the same period Respondent
hauled approximately 75,218 tons of petroleum products of which approximately
40 percent was transported by Respondent in interstate commerce. These find-
ings are based on stipulated and uncontradicted facts in the record and admis-
sions in Respondent's answer.
On the basis of the above facts, I find that Respondent is engaged in commerce
within the meaning of the Act s
II. THE LABOR ORGANIZATION -INVOLVED
Truck Drivers, Chauffeurs, Warehousemen and Helpers Local Union No. 941,
affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL, is a labor organization within the meaning
of Section 2 (5) of the Act, which admits to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The background and composition of Respondent
The Respondent partnership consists of Earl B. Law (hereafter abbreviated
to Earl Law), a man of 60, as senior partner, and his son, Donald T. Law (Donald
Law), as junior partner. Donald Law has been general manager of the business
since September 1948, when his father became ill and unable to devote full time
to the operation. Earl Law has been in the trucking business since 1931; from
1931 to 1945 he was engaged in the transportation of produce to markets in New
Mexico and Phoenix, Arizona ; from 1945 to October 3, 1947, he was in partnership
with his brother, Carl Law, under the name of Law Brothers in the transportation
of petroleum products. When Respondent was formed on October 3, 1947, Law
0 Cf. Carl Hvid8ten, d/b/a Hvidsten Transport, 82 NLRB 1236.
E. B. LAW AND SON 835
Brothers was dissolved , and Respondent bought all the truck and trailer equip-
ment of the old partnership , except three units to which Carl Law retained title
and which he has since leased to Respondent under written lease agreements.
.After the dissolution of Law Brothers , Respondent employed Carl Law in varying
capacities , such as maintenance man and driver , until June 30, 1949.
J. Dean Wingert, truck dispatcher at the Respondent 's Las Cruces terminal,
worked as a driver for Law Brothers from 1943 to 1947, and was employed by
Respondent in the same capacity from 1947 until 1948 , when he was promoted
to dispatcher at its Artesia , New Mexico , terminal . In April 1949, Respondent
transferred him to Las Cruces as a dispatcher and supervisor in charge of main-
tenance and for the purpose of learning the business , so that he could take the
place of Earl Law in the active conduct of the business , and assume some of the
managerial duties performed by Donald Law. W . Cleo Jones had worked as a
driver for Law Brothers from June 1, 1946, to October 1947, and continued the
.same work for Respondent , after its organization , until his discharge on May 6,
1949. J. D. McClure had also worked as a driver for Law Brothers from Decem-
ber 1946 to October 1947 and for Respondent from that date until his discharge
on May 6,1949.
During April and May 1949 , Respondent employed approximately 19 drivers ;
about 14 of them operated out of the Las Cruces terminal . All of the drivers
operated semitrailer , or tractor -trailer, units . Each unit consisted of a truck
or tractor having a single heavy driving axle in the rear, with dual wheels
and tires on each end of the axle , and a tank trailer having two axles in the
rear, with dual wheels and tires on each end of each axle ; the tank trailer is
connected to and supported upon the rear end of the tractor by a so-called "fifth
wheel," consisting of a horizontal circular plate, with a kingpin in the center,
on the rear deck of the tractor , upon which the forward end of the trailer
rests and swivels, fastened thereto by means of the kingpin. The tractor weighs
•in the neighborhood of 8,000 pounds ; the tank trailer carries 5 ,000 liquid
gallons.
Respondent 's drivers earn varying amounts, as they are paid by the trip,
receiving greater compensation for long hauls than short hauls.
B. The activities of the Union
International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America conducted an "over-the-road" campaign throughout the
United States from April 1 to 15, 1949 , for the purpose of checking wages, hours,
and other conditions of employment of truck drivers , chauffeurs , and other
workers in allied occupations over which the Union claimed 'jurisdiction, and
to find out how many such workers were not unionized . In conducting this
campaign, union representatives spoke to drivers of all types of trucks wherever
they found them. In the El Paso, Texas , area, which included the southern
part of New Mexico, the campaign was conducted by a Joint Council ( of Team-
sters' local unions) from El Paso which included Local No. 941. Representa-
tives of the Joint Council conducted their check in Las Cruces for 3 days from
April 3 to 5 inclusive, 1949. In the course of the inquiry the union representa-
tives spoke to drivers employed by Respondent and learned that they were
not unionized and that Respondent was paying wages which were below the
union scale.
As a result of the information gathered during the "over-the-road" campaign,
Thomas U. Wolfe, then business agent of Local No. 941 , visited the main office
of Respondent in Las Cruces! New Mexico , on April 25, 1949, to discuss with
Respondent the question of union organization of its employees . He had an
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
extended discussion on the subject with the partners Earl B. Law and Donald
Law, which will be discussed hereafter. Thereafter, Wolfe made attempts to
contact Respondent's drivers at other places about union organization. Wolfe
talked to W. Cleo Jones, a driver of Respondent, in a lunchroom in Lordsburg,
New Mexico, on May 3, 1949, and made arrangements to meet Jones at his home
in Las Cruces, New Mexico, on Thursday, May 5, 1949, to discuss the Union, its
activities, and organization. Wolfe suggested that Jones invite to that meeting
other' drivers of Respondent who might be interested. Jones thought J. D.
McClure would be interested, and he invited McClure and at least three other
drivers to the meeting.
The meeting was held at Jones' home in Las Cruces on the evening of.May 5,
1949. It was attended by Wolfe, Fred Bone, a Teamsters' representative from
El Paso, Texas, W. Cleo Jones and his mother, father, and brother. In the
course of the meeting, about 8: 30 p. in., Carl Law, brother of Earl Law and at
that time employed as a driver by Respondent, visited Jones' home. The cir-
cumstances of the meeting, Respondent's knowledge of it, and action taken after
it was held will be discussed below.
On the following morning, May 6, 1949, W. Cleo Jones was discharged by Re-
spondent under circumstances hereafter related. Shortly thereafter, on the
same morning, Respondent discharged J. D. McClure, who ha,d been invited to
the meeting but was unable to attend. The circumstances of his discharge will
be discussed below.
0. Respondent 's conduct in response to union activities
1. Interference , restraint, and coercion
During the first week of April 1949, Earl Law, senior partner of Respondent,
had a talk with driver W. Cleo Jones at a restaurant about a block from Re-
spondent's office in Las Cruces. At that time the Union's "over-the-road" check-
ing campaign was in progress in the El Paso area and in Las Cruces. Earl Law
started the conversation by stating that he understood the Union was starting
a campaign to put pressure on nonunion trucking outfits to unionize their drivers,
and he wanted to know how Respondent's drivers felt about it. He asked .Jones
how he felt about unions, and whether Jones wanted to become a union member.
Jones replied that he knew nothing about the Union, and before he could give
Law an answer he would have to get more information about it. They then
walked over to the office of Respondent, and on the way Earl Law tried to show
Jones that the drivers would make less money if Respondent was unionized than
they were making at present. Earl also said that he would try and find out.
from all the drivers whether they did or did not want the Union, and that if they
all wanted the Union he would be glad to "go union," and "if they didn't go union,
he didn't want any."'
In the latter part of April, driver Marvin Moore had a discussion in front of
Respondent's office with both Earl and Donald Law. Earl Law asked Moore what:
he thought about the Union, stating, "Do you want to go union or don't you want.
to go union?" Moore replied that, speaking for himself, he had about all the
bills he could pay without paying union fees. He also said "besides, it didn't
matter what I think or we think. If you want me to say `yes', I will say 'yes': if
you want me to say `no', I will say 'no.' " Donald Law then said, "Well, one thing
about it, if you go union, you won't get to work but 40 hours a week." Neither of
the Laws made any comment or response to Moore's statement that he would.
•
e This finding is based upon the uncontradicted and credited testimony of W. Cleo Jones-
E. B. LAW AND SON 837
answer Earl's question about the Union whichever way they desired. This find-
ing is based upon the uncontradicted and credible testimony of Marvin Moore.
The interrogation by Earl Law of Jones and Moore about their desires as to
union affiliation was per se a violation of the Act, because of the tendency of
such conduct to interfere with the free exercise by employees of the rights guar-
anteed in Section 7 of the Act. The Board has consistently held that Section
8 (a) (1) of the Act is violated when an employer interrogates his employees con-
cerning any aspect of union activity.? I therefore find that the Respondent, by
Earl Law's interrogation of Jones and Moore related above, interfered with, re-
strained, and coerced its employees in their exercise of rights guaranteed to them
by Section 7 of the Act, in violation of Section 8 (a) (1) of the Act.
It is clear from the testimony of Claud R. England, Bernice Deaton, and
Donald Law, and I find, that Respondent's drivers were regularly working more
than.40 hours per week during April and May 1949. The remark of Donald
Law to Moore regarding a probable reduction of hours of work to 40 per week
if the Union came into the plant constituted a clear threat of reduction in pay
if Moore and the other drivers joined the Union. This threat of economic
reprisal was an interference with, restraint, and coercion of employees in the
exercise of rights guaranteed by Section 7 of the Act; such statements are also
outside the protection of Section 8 (c) of the Act.'
Some time after May 5, 1949, England had a discussion with Donald Law at
the office about the Union, during which Donald Law said that if the drivers
went Union, Respondent would probably have to hire more men and cut the
drivers down to 40 hours per week. This remark was of the same tenor as that
made by Donald Law to Moore in the latter part of April, as found above. I
therefore find that this statement was likewise a threat of economic reprisal
if the drivers joined the Union, and as such amounted to interference, restraint,
and coercion of the employees in violation of Section 8 (a) (1) of the Act.
2. Respondent's conference with Wolfe on April 25, 1949
As a result of the information obtained from Respondent's drivers during
the union checking campaign in the first part of April, as outlined above, Thomas
U. Wolfe, the union representative, visited the office of Respondent at -Las
Cruces on April 25, 1949, for the purpose of discussing organization of Re-
spondent's employees with the officers of Respondent. He had talked with
drivers Jones and E. R. Sides about the matter at Lordsburg, and sought this
conference with Respondent at the suggestion of Sides. He entered the office
about 10 a. m., and introduced himself to Earl Law as the union representative,
and stated that he would like to talk about organization of Respondent's em-
ployees. During this talk, Earl Law, Donald Law, Carl Law, a Mrs. Apodaca,
secretary of Respondent, an unnamed office girl, and driver E. R. Sides, were
present. When Wolfe introduced himself and stated the purpose of his visit,
Donald Law said that they had heard of Mr. Wolfe. Earl Law admitted he
knew about the Union's activity in the area and then began to talk about his
dislike, of the Union and the experiences he had had with them in the past ; he
recounted trouble he had with the Teamsters' Union in 1938 when he was
trucking loads of produce into the Phoenix, Arizona, market, stating that he.
had _bee4acompelled to carry a gun in the glove compartment of his truck to
° See Standard-Coosa-Thatcher Company, 85 NLRB 1358 ; The Linde Air Products
Company, 86 NLRB 1333.
8 See Ozark Dan, Constructors and Flip pin Materials Company, 86 NLRB 520; Cedar-
town Yarn Mills, Inc ., 84 NLRB 1; Quarles Manufacturing Company, 83 NLRB 697, 699.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
protect himself against the Union and that he had had full intentions of using
it, if necessary. He asked Carl Law to bear him out on that story, and Carl
Law talked about the same trouble. Donald Law then asked Wolfe what he
was earning as a union representative. Wolfe replied that he was making
$72.00 a week. Donald Law then stated that Wolfe was the most overpaid
son-of-a-bitch that he knew.
In the course of the discussion, Earl Law asked Wolfe what his Union could
do for the employees, and Wolfe replied that the Union advocated better hours,
wages, and conditions for all employees. Earl Law. then said that if Respondent
was unionized, he would cut the men to 40 hours a week and they would not earn
as much as they were at that time. He also stated. that he had been fair to his
employees, and he knew that they didn't want a "dirty bunch of bastards" like
the Union. He also stated that when the Union came in, it took over the
business of the employer and that the employer could not run his own business.
Donald Law then said that no union would ever run his business. Earl Law
further said that before he would have a union, he would sell his equipment or
give it away or jack it up, and would have nothing to do with the Union. Wolfe
then asked Earl Law for permission to contact the employees about union affilia-
tion and Earl Law said "absolutely not," that he would fire any man that thought
of joining a union or talked to a union man. Wolfe then told Earl Law that
the course of the conversation was benefiting neither himself nor Mr. Law, and
he excused himself and left the office."
The above statements of Earl and Donald Law clearly indicate Respondent's
definite hostility to union organization of its employees. While the Laws had
the right to express their opinion of the Union, based upon their past experiences,
their villification of the Union and its representative, their threats to cut the
working hours and to sell or jack up the equipment if the Union organized the
drivers, and their final threat to fire any man who thought of joining a union or
talked to a union man, all made in the presence of their employees, do not come
within the category of free speech but constituted clear threats of economic and
other reprisal outside the scope of Section 8 (c) of the Act, and amounted to
coercion of the employees.'" I therefore find that the Respondent, by the state-
ments and threats of Earl Law and Donald Law to Wolfe, as found above, in-
terfered with, restrained, and coerced its employees in violation of Section 8
(a) (1) of the Act.
3. The poll of employees on April 25, 1949
As found above, as soon as Respondent learned of the union campaign to
organize nonunion trucking concerns in the Las Cruces area, Earl Law told W.
Cleo Jones that he was going to find out how his drivers felt about the Union.
" The finding of the above conversation is based upon the credited testimony of Thomas
U. Wolfe. Donald Law denied that he had characterized Wolfe as overpaid in derogatory
fashion, or that his father had threatened to cut the working hours or sell or jack up the
equipment, or said that the drivers didn't want the Union. I do not credit these denials,
however, because Donald Law did not deny the balance of the conversation nor give his
own version of what was said. Earl Law, did not deny the statements attributed to him,
or give his version of the conversation. Neither Carl Law, E. R. Sides, or the two office
employees of Respondent were called by Respondent to testify as to what was said, although
they all heard the discussion in the small office. The failure of Respondent to call these
employees to testify raises the inference that, if called, they could not truthfully deny
Wolfe's version of the conversation.
10 These statements of the Laws, when considered with other unlawful conduct found
herein, far outweigh their professed willingness to abide by their employees' desires as to
union organization, and the testimony of some witnesses that the Laws were considered
"fair" employers by their drivers.
E. B. LAW AND SON 839
Thereafter , in the early morning of April 25 , 1949, Earl and Donald Law had
the conversation with Wolfe, the union representative, at Respondent's office,
which has been discussed above.
On the same day, after Wolfe left the office, the Laws had typed in the
office on the letter-head of Respondent, under date of April 25, 1949, the follow-
ing (General Counsel's Exhibit No. 2) :
We have been contacted by Mr. Wolfe, representative of the A. F. of L.
Teamsters' Union. This is for purpose of deciding whether or not we
should form a Union shop.
Indicate below whether or not you desire Union Membership.
Beneath these words appeared two columns of dotted lines, the left-hand
column headed by the word "Yes," the right-hand column headed by the word
"No." This paper was kept in the Las Cruces terminal office at a desk occupied
by Earl Law and Donald Law. J. Dean Wingert, the truck dispatcher at Las
Cruces, signed it first in the "No" column. Thereafter, as each driver brought
his truck into the terminal and reported to the office, he was told, either by
Wingert or Earl or Donald Law, that there was a paper on the desk in the office,
that he should read it and if he cared to sign it, to sign either way he wished.
Thus, Wingert, in the presence of Donald Law, mentioned the paper to Marvin
Moore, explained that it was to indicate whether or not the drivers wanted the
Union, and how many drivers had desires either way, and told him to go in
and sign it. When Moore went into the office, Donald Law went in ahead of
him and handed the paper across the desk to Moore, who read it and then
signed in the "No" column. Before signing it, Moore told Wingert in the
presence of Donald Law, "I will go in and sign it `no' because if I sign it `yes,'
I'm not coming back." Neither Donald Law nor Wingert replied to this at
the time or made any comment about it when Moore signed. However, as
Moore was signing, Wingert told Donald Law that he wasn't doing this right,
that "You should put that to a secret vote ; you don't know what he would be
voting." Donald Law made no reply to this suggestion. After he signed the
paper, Moore laid it back on the desk in front of Donald Law. This finding is
based upon the uncontradicted and mutually corroborative testimony of Moore
and Wingert.
When James T. Goodin reported to the office about the same date, Donald Law
told him there was a paper in the office that all -drivers were signing, and if
he cared to he could read it and sign it in either column he wished. Goodin
signed eleventh in a list of 13 signatures in the "No" column. As he signed, he
noticed there were no signatures in the "Yes" column (indicating a desire for
union membership). Claude R. England signed the document twelfth in the "No"
column just below Goodin, after either Earl Law, Donald Law, or Wingert gave
the paper to him in the office. J. D. McClure signed the paper tenth in the
"No" column on April 25, 1949, when he and Donald Chitwood came in from
trips. When they entered the office together, Earl Law was sitting at the desk,
handed the paper across the desk to them and asked them to read and sign it.
Chitwood signed it "No" in ninth position, then McClure signed it and handed
it back to Earl Law. McClure noticed that J. D. Wingert, the dispatcher,
E. R. Sides, another driver, and Carl Law, the brother of Earl Law, had signed
in the first 3 positions in the "No" column.11
Respondent admits the preparation of this paper but contends that there was
no violation of the Act in leaving the paper for the employees to examine and
"The above findings are based upon .the uncontradicted and credited testimony of
Wingert, Moore , Goodin, England , and McClure.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sign as they desired, and there was no attempt made to force the employees to
sign, and if they did sign, to sign in either column. I find no merit in this
contention.
Earl Law had already told Jones in early April of his intention to find out
from all the drivers whether or not they wanted to join the Union. Respondent
carried out this intention by preparing the open ballot sheet for signature by the
drivers. Although Wingert indicated to Moore that he did not have to sign the
paper at all, Moore expressed his feeling that he would have to sign it "No" in
order to keep his job. The failure of Donald Law and Wingert to correct this
impression by disavowing any desire of Respondent to coerce Moore with regard
to signing, or by expressing Respondent's now professed neutrality, was an
evidence of Respondent's desire for a vote against the Union, which was consistent
with its intention, expressed by Earl Law to Wolfe shortly before, to fire any
employee who even thought of joining the Union. Furthermore, Earl Law, in
presenting the ballot sheet to Chitwood and McClure respectively, directly told
them to read and sign it, which was tantamount to an order. Whether accom-
panied by a suggestion or an order, the mere presentation by Respondent of the
paper to its employees for consideration and signature, and the fact that, the
drivers were required to sign it in the office in the presence of Respondent's
officers, was clearly a form of interrogation proscribed by the Act. Wingert
himself recognized the illegality of the procedure when he suggested to Donald
Law that it should be done by a secret vote, so that Respondent would not know
how the driver was voting.
Although proof that Respondent's poll actually coerced the employees is not
necessary to support a finding of violation of the Act," if such proof were needed
it is found in Moore's statement at the time he signed the ballot sheet that he
would have to sign "No" to keep his job, Respondent's failure to dissipate that
impression, and the fact that all drivers who signed placed their signatures in
the "No" column under the eyes of their employers, and none signed the "Yes"
column. The complete lack of signatures in the "Yes" column is not surprising
in the light of Respondent's hostility to the Union, expressed openly to Jones,
Wolfe, and Moore as found above. Another indication of the coercion inherent in
the document lies in the fact that the drivers who read the paper saw that
Wingert, the dispatcher and supervisor of the drivers, and Carl Law, a relative
of the partners and owner of some of Respondent's equipment, had signed the
"No" column at the top.
Upon the above facts and considerations, I conclude and find that Respondent,
in soliciting and ascertaining the views of its employees as to unionization' by
means of the open ballot form described above, has interfered with, restrained,
and coerced its employees in violation of Section 8 (a) (1) of the Act"
Even if it be assumed that Respondent had a legal right to poll its employees in
the manner described, its purpose in making the inquiry indicates an intention
and plan hostile to the fundamental right of its employees to self-organization
as guaranteed by the Act. Wingert testified without contradiction, and I find,
that the Laws were trying to find out, through the open ballot, how many drivers
wished to affiliate with the Union, and that if all or a majority of them favored
affiliation, the Laws intended to give a dinner to the drivers sometime in June
1949, at a place to be chosen by Donald Law, and would have a union representa-
tive present to explain to the drivers the advantages of the Union, and at the
12 See Everett Van Kleeck & Company, Inc ., 88 NLRB 785.
13 See N. L. R. B. v. New Era Die Co., Inc ., 118 F. 2d 500, 503, 504 (C. A. 3) ; N. L. It. B.V.
Alco Feed Mills, 133 F. 2d 419, 421 ( C. A. •5) ; Ideal Laundry and Dry Cleaners, 55
NLRB 845, 852.
E. B. LAW AND SON 841
same time Respondent could state its arguments against the Union, and that
such representative would not be Wolfe, to whom the Laws had talked on April
25, but some other Teamsters representative. These facts indicate that Re-
spondent, while hoping at the outset to influence its employees against the Union,
was nevertheless preparing to interfere with its employees' self-organization in
the event they decided to organize. While I make no finding of violation of the
Act on the basis of Respondent's future plans in this respect, such plan, though
not consummated so far as the record discloses, is indicative of the coercive
and illegal motive behind the open ballot of April 25, 1.949.
4. Other interference : interrogation, surveillance, and threats
It has been found above that Wolfe, the union representative, had arranged
with W. Cleo Jones at Lordsburg, New Mexico, to discuss the Union and its ac-
tivities with Jones at his home in Las Cruces on Thursday evening, May 5,
1949. At Wolfe's suggestion, Jones invited drivers McClure, James T. Goodin,
Claud R. England, and Marvin Moore to the meeting, but none of them at-
tended. The meeting lasted from 7:30 p. m. to about 9:30 p. m. It was attended
by Wolfe and Fred Bone, Teamsters representatives, Jones and his mother,
father, and younger brother. During the meeting Wolfe discussed and ex-
plained to Jones the organization of the Union, its rules and regulations, its
method of organizing employees, the types of contracts and the benefits which
the Union secured for employees in the trucking industry, and other related
matters : About 8: 30 p. m., Carl Law, brother of Earl Law, visited Jones' home
and asked Jones to return a violin which he had previously left with Jones
for repair, stating that he wanted the instrument to play at a dance. While
Jones went to another part of the house to get the violin, Carl Law came into
the living room, where the meeting was being held, and sat down opposite Bone
and Wolfe, the Teamsters' representatives. Carl Law was in the, living room
about 5 minutes. He knew Wolfe, at least, for he had been present in Respond-
ent's office during the conference between Wolfe and Earl and Donald Law
on April 25, 1949.14
On the afternoon of May 5, Earl Law had told England that he had heard
there was going to be a meeting at Jones' house, and he asked England if he
was going to it. England said he didn't know anything about it. Earl Law
then told him he had W. Cleo Jones' check "wrote out," thus indicating to Eng-
land that Jones was about to be discharged. On the same day Bernice Deaton,
a driver from Lordsburg, was at Respondent's office and heard Donald Law say
that there was going to be a union meeting that night and that some of the
boys would be there. Before Deaton left to return to Lordsburg, Wingert called
his attention to a final pay check for Jones, indicating that Jones was about
to be discharged. These findings are based upon the uncontradicated and cred-
ited testimony of England and Deaton.
On the morning of May 5, Wingert had asked Moore at the office if Moore
knew there would be a union meeting. Moore said that he did. Wingert then
asked him if he had been invited, and Moore admitted that he had. Wingert
asked Moore where the meeting would be held, but Moore refused to say.
Wingert then said: "You just as well tell me anyway because I am going
to find out, because we are going to make all the drivers' places tonight." Moore
then said: "To save you the trouble, I will tell you then. It is at Jones' house."
Moore then told him that he would be going to the meeting, except for the fact
14 These findings are based on the uncontradicted and credited testimony of Wolfe and
Tones.
929979-51-vol. 92-55
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he had to be home, since his mother-in-law, had died that day. This find-
ing is based upon the uncontradicted and credited testimony of Marvin Moore.
The next morning, May 6, Jones and McClure were discharged by Respondent
under circumstances which indicate that Respondent had found out who was
present at the meeting. When Jones reported for work about 7: 30 a. M., Earl
Law asked him "How did the meeting go last night?" and then gave Jones
his final check. The full circumstances surrounding Jones' discharge will be
discussed below. When McClure came to the office the same morning, Earl
Law handed him his final pay check and mentioned the union meeting the
night before, admitting that he knew McClure did not attend. The full circum-
stances of McClure's discharge will also be discussed below. Sometime later
the same day, Goodin came into the office after a run and was told by Earl
Law that McClure had been discharged. When Goodin asked the reason for
the discharge, Earl Law said there had been a union meeting called for the
night before. Goodin said he had been invited, same as McClure, and Earl
Law said that he knew it.'.'
Wingert's statement to Moore, as found above, indicated that Respondent
knew about the union meeting and intended to keep it under observation to
find out which drivers attended. Although the record does not indicate that
Wingert, Earl, or Donald Law were observed in the vicinity of Jones' house
while the meeting was in progress, Carl Law came in during the middle of the
meeting and saw who was there. The remarks of Earl Law to Jones, McClure,
and Goodin the next morning clearly indicate that he knew no one but Jones
had attended the meeting.
On the basis of the above facts, I conclude that Carl Law visited the meeting
on behalf of Respondent to find out who was attending it, and I have no doubt
but that he communicated this information to his brother, Earl Law.ie In
addition, Wingert's remarks to Moore about the intended surveillance of the
meeting clearly created the impression that Respondent intended to keep its.
employees under observation regarding their union activities, and was coercive.
I therefore find that Respondent, by its surveillance of the meeting of union
representatives with Jones at the home of the latter on May 5, 1949, and by
Wingert's statements to Moore of Respondent's intention to observe the meet-
ing, interfered with the rights of its employees guaranteed by Section 7 of the
Act, in violation of Section 8 (a) (1) of the Act.17
I further find that Respondent, by Earl Law's interrogation of England and
Wingert's interrogation of Moore, as to whether they would attend the union
meeting, interfered with, restrained, and coerced its employees in violation
of Section 8 (a) (1) of the Act.
Respondent argues in its brief that Wingert's, statements to the employees
regarding the open ballot and their union activities were mere casual con-
versations of a minor supervisory employee which are not binding upon Re-
spondent, and that Wingert was not a "supervisor" within the meaning of
Section 2 (11) of the Act. Wingert had driven for Law Brothers, predecessor
to Respondent , from 1943 to 1947, and had continued to drive for Respondent
after its organization. In 1948 Respondent installed him at its Artesia, New
15 These findings are based on the Uncontradicted and credited testimony of Jones,
McClure, and Goodin.
16 Carl Law was not called by. Respondent to testify. Considering his relationship to
the partners, his financial interest and employment in the business, and Wingert's state-
ments to Moore regarding the intended surveillance of the meeting, it is a legitimate
inference that Carl Law reported to either Earl or Donald Law, or both, what he observed
at the meeting.
17 See F. W. Woolworth Company, 90 NLRB 289.
E. B. LAW AND SON -843
Mexico, terminal as a dispatcher with an increase in salary. At Artesia he
received hauling orders directly from customers of Respondent and on the,
basis thereof assigned drivers to various trips . He also changed drivers on
trucks as he saw fit, and supervised and corrected them in the timing of their
trips. He had power to lay off drivers for failure to obey orders. In addition,.
he checked and directed all maintenance work on trucks and trailers and would.
send units to the Las Cruces terminal for repairs when necessary. These duties
indicate , and I find, that Wingert was acting as a supervisor for Respondent
at Artesia. Wingert was transferred to Las Cruces in April 1949, with another
increase in salary, for the express purpose of learning the duties of manage-
ment there so that he could replace Earl Law in the active operation of the
business and could take over some managerial duties performed by Donald Law
in order to release the latter for necessary travel in connection with the business.
At Las Cruces Wingert continued to dispatch trucks, change drivers, and super-
vise maintenance work, as he had done at Artesia. He was performing these
duties in April and May 1949. It is true that in this period he did not have
the power to hire and discharge men, as Donald Law still performed those
duties, but Wingert received that power in September 1949 and has exercised
it ever since.18 The power to hire and fire is only one indicium of supervisory
capacity and its existence may make more plain the connection between the
actor and the employer ; but its absence does not preclude the existence of
such connection.1' On the basis of the above facts I find that since April 1919
Wingert performed such duties and exercised such authority at the Las Cruces
terminal as reasonably to indicate to the employees that he was acting for
and as a representative of management, that the drivers were justified in con-
sidering him as speaking for Respondent," and that he was in fact a supervisor
within the meaning of the Act for whose acts Respondent was responsible .21
D. The discharge of W. Cleo Jones
W. Cleo Jones was the oldest driver in point of service at the Las Cruces
terminal, having worked there for Respondent since its organization. He had
previously driven a tank truck for its predecessor, Law Brothers, for about 11/2
years. Before -he went into the army in March 1944, he had driven for Carl
Law for about a year. Throughout his employment by Respondent, he worked
steadily without layoff, he was always one of the top men in point of earnings,
and was considered by Respondent as doing a "very reputable job," according
to Donald Law.
As set forth above, Earl Law had questioned Jones about his feelings toward
the Union in early April, about the Time the Union "over-the-road" campaign
got under way. Jones had been noncommittal on the subject, stating he could not
answer Law's question until he found out more about the Union. Jones is the
only driver who did not sign the open ballot form presented to drivers for
18 These findings are based on the mutually corroborative testimony of Earl Law , Donald
Law, and Wingert.
1° International Association of Machinists v. N. L. R. B., 110 F. 2d 29 , 44-45 , affirmed
311 U. S. 72, 79-80.
20 That Wingert 'spoke for the management in dealing with the drivers is further indi-
cated by the fact that his explanation to Moore of the purpose of the open ballot of
April 25 and his suggestion to Moore about reading and signing it, were made in the
presence of Donald Law , who neither repudiated the remarks nor denied Wingert's
authority to make them.
21 See Red Arrow Freight Lines, Inc., 77 NLRB 859, 881, enforced, 180 F. 2d 585 (C. A.
5) ; Pennsylvania Greyhound Lines, 11 NLRB 738, 744, 745.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signature by the Laws on and after April 25, 1949; he never saw it until after
he was discharged on May 6, 1949.
On the night of May 5, 1949, Jones had the meeting with Wolfe and Bone,
Teamsters representatives, at his home as related above. I have found that
Respondent had known about the date and place of the meeting for several days
before it occurred, and had asked various employees whether they would attend
it, and that Carl Law visited the meeting to find out who was there. Earl Law
had already told Wolfe on April 25, in the presence of other employees, that lie
would fire any man who thought of joining the Union or talked to a union man.
Jones reported at the Las Cruces terminal for work about 7: 30 a. in. on May
6, the day after the meeting. Earl Law and Wingert* were in the office. Jones
asked if they had a trip order for him, and they said "No." Earl Law then
asked Jones, "How did the meeting go last night?" Jones replied he "guessed
it went off all right." Earl Law then took a check made out to .Tones from his
desk, gave it to Jones and asked him to look it over to see if it was correct.
Jones asked Earl Law the reason for the check, and Earl Law said he would not
have a man on the payroll who would talk to or be with a union man. Jones
replied he did not intend to join the Union, but was merely trying to find out
what the Union had to offer .12 Earl Law said that made no difference, that all
of his other drivers had signed the ballot sheet indicating they would not "go
union," and he would not have a man around who was even thinking about
the Union. At the same time, he showed Jones the ballot sheet referred to
above, which Jones saw then for the first time. Jones then went out to his
truck, removed his tools, and was driven home by Wingert, the. dispatcher.
Neither Earl Law nor Wingert denied the above conversation as related by
Jones, and I find that it occurred as set forth above.
Respondent claimed at the hearing that Jones was discharged because he
had driven his truck-trailer unit at excessive rates of speed and otherwise abused
the unit during a period of about 4 months preceding his discharge, thereby
causing his tractor to break down on several occasions with substantial expense
to Respondent for repairs and maintenance. Respondent proved by its records,
and I find, that during the months of January through April 1949, and up to
May 6, 1949, Respondent expended the total sum of $794.99 on Jones' equipment
for parts and labor. That figure consists of $387.04 for parts purchased, and
$307.95 for labor performed. In the same period, the average cost of parts for
the other 16 units in Respondent's fleet was $203.18 per unit, and the average
' ost of labor was $225.47 per unit-a total of $428.65 per unit ; if the maintenance
cost of Jones' truck is included in the fleet figures, the average parts cost was
$218 per unit, and the average labor cost was $237 per unit-a total of $455
per unit. Whether the figures as to Jones' unit are included or not, the mainte-
nance cost on his equipment was substantially higher than the average for the
remainder of the fleet.
A summary by months of the labor and parts bills applicable to Jones' equip-
ment appears as Appendix A to this Report 2S It will be noted from the sum-
mary that the January bills cover generally routine overhaul of the electrical
systems of the unit, with installation of minor parts, adjustment of the running
gear and brake systems, and other minor repairs. The early February bills
likewise involved minor electrical and other repairs and replacements. Between
February 21 and 27, the truck motor was torn down for replacement of a broken
piston, valve, and cylinder head ; in the same operation, a complete valve grinding
a Jones did not join the Union until August or September 1949.
x% Jones' unit was known in the fleet, and is identified on repair bills, as. either No. 27
or 27A.
E. B. LAW AND SON 845
job was performed, and new piston rings installed ; a front spring was replaced,
and other needed adjustments of running parts were performed ; all at a total
expense of over $400. In March the unit required routine maintenance, overhaul
and adjustment of the electrical system, and apparently normal replacement of
parts such as a water pump, distributor, etc. ; in the same month a spring was
replaced. In April, routine electrical and other maintenance on the truck, with
the usual replacement of smaller parts, was required, but on April 27 the
differential on the tractor was dismantled for the installation of a new ring
gear and pinion and a complete overhaul of the two- speed drive contained in
the differential housing, at a total expense of approximately $160.
Respondent contends that these repairs and maintenance costs were caused by
Jones' driving of his unit at excessive speeds in violation of Respondent's rules,
State laws, and the rules of the Interstate Commerce Commission by which
Respondent's operations were governed. Respondent also contends Jones abused
his equipment in other ways, such as becoming involved in accidents, running on
low or flat tires until they were ruined, and otherwise handling his equipment
so as to cause undue strain upon the breakage of other parts. These contentions
will be considered in order.
Speeding.-Donald Law testified that he had received reports that Jones
drove his equipment at excessive speeds on three occasions, one each in February,
March, and early May, 1949, and that after each report he warned Jones against
a repetition of the offense. Jones does not recall any specific warnings about
speeding but did not deny that Tie received them. There is no testimony in the
record as to the place, time, or rate of speed involved in the February incident,
or the person who observed and reported it. I therefore find no credible proof
that Jones drove his unit at excessive speed in February 1949, and I credit
Donald Law's testimony only as to the warnings after the March and May
incidents.
With regard to the March and May incidents, the testimony of John Bernard
Shaw shows that once in March Jones drove his unit between Las Cruces, New
Mexico, and El Paso, Texas, at approximately 75 to 80 in. p. h., and that on the
early morning of May 1 or 2, 1949, Jones drove his unit along the same route
at approximately 80 in. p. h. Jones does not deny these instances ; he admitted
he drove his unit at varying speeds, but claims not over 60 in. p: h.; he also ad-
mitted he had advised Donald Law in August 1948 that his truck registered 72
in. p. h. road speed at a top tachometer reading of 2,500 r. p. m. for the motor,
which indicates that he must have driven the unit at that-speed at least once in
order to get these readings. Driver Goodin testified credibly that he had followed
Jones' truck on nearly all routes covered by Respondent, and that although he
drove his own equipment on the average of about 50 in. p. h., Jones would always
outdistance him. On the basis of the above testimony, I conclude and find that
Jones drove his truck-trailer unit between 70 and 80 in. p. h. on two occasions
in March and May 1949, and at least once in 1948, and that he often drove it at
speeds in excess of 50 in. p. h. while working for Respondent.
Respondent claims this excessive speed was the direct cause of the costly
repairs on Jones' truck and is conclusive proof that he abused his equipment.
Shaw had reported both instances of speeding to Donald Law and expressed his
opinion to Law that excessive speed was the direct cause of the motor break-
downs and repairs required on that unit. At the hearing Shaw gave his opinion
that driving of Jones' truck at 80 in. p. h. would cause excessive heat and strain
in the motor, which would cause the valves to burn and break off, fall into the
combustion chamber, and "tear up the motor." Earl Law and Deaton gave the
same opinion . Jones himself thought that the broken valves, piston , and cylinder
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
head which were replaced on his truck in February 1949 were due to crystalliza-
tion and breaking of a valve caused by heat in the combustion chamber. From
this testimony I find that operation of Jones' truck at 80 in. p. h. or over would
tend to cause burning and breakage of valves with resultant damage to other
parts of the motor, requiring repairs similar to those made on his truck in
February.
However, it does not appear . from the record that Jones' speeding was the sub-
stantial cause of the proven damage to his truck. In the first place, there is no
proof that the speed of 72 in. p. h. which Jones attained in or about August 1948
caused, or could proximately have caused, any of the repairs required in the first
4 months of 1949. Secondly, I have found no credible evidence of speeding in
February or earlier in 1949 which could reasonably be said to have caused the
extensive repairs and overhaul on the tractor in February. Thirdly, the speeding
incidents of March and May 1949 occurred after the February repairs and obvi-
ously could not have been the cause thereof ; the labor and parts bills for March,
April, and part of May disclose only minor and apparently routine repairs and
maintenance , including replacement of small parts on the motor , which can
normally be expected for a large tractor that is continually used for heavy-duty
hauling over long distances." Finally, Respondent produced no proof'of any
repairs or maintenance (similar to those of February 1949) after May 6, 1949,
which would indicate that the speeding incidents of March and May damaged the
equipment.
As against Respondent's contention, there is-persuasive proof in the record
that the heavy repairs and maintenance on Jones' unit were caused substantially
by the condition of the roads over which Respondent's equipment traveled, the
schedules under which Respondent operated its trucks, and the hazards of
truck operation in general. During the early part of 1949 many of the main
roads over which Respondent's trucks operated were in bad condition, partic-
ularly U. S. Highway No. 80, the main truck route leading west to Lordsburg,
New Mexico, and points in Arizona, U. S. Highway No. 85 leading north to
Hot Springs, Socorro, and Magdalena, New Mexico, and U. S. Highway No. 54
leading northeast to Carrizozo and Corona, New Mexico. It is common knowl-
edge that motor vehicles traveling on highways frequently strikes uneven
places in the road surface which are sufficient to cause damage to the vehicle 2s
Each of Respondent's tractors weighed in the neighborhood of 8,000 pounds
and hauled tank trailers of 5,000 gallons liquid capacity, and it is obvious
that the wear and tear on truck motors and equipment in hauling loads of
this size over long distances on rough roads would be considerable, requiring
extensive maintenance and frequent overhaul and repair. The bulk of the
repair and maintenance cost on Respondent's trucks could be expected to occur
24 The repair bills in evidence do not cover the whole fleet , but nevertheless show that
similar repairs and maintenance were required on other units.
28 See C. J. S., Title "Evidence," Section 81, p. 676; Bell v. American Insurance company,
173 Wis. 533, 181 N. W. 733, 14 A. L. R. 179. Jones had a broken front spring in early
1949 returning to Las `Cruces from the west along U. S. Highway No. 80; the repair
bills show a front spring was replaced on his truck on February 23, 1949. Jones and
Deaton testified credibly that in that period Highway No. 80 to Lordsburg, New Mexico,
was in bad shape , with rough surface , many holes , and broken shoulders ; it was the main
truck route west into Arizona ; Earl Law said that at the time of the hearing part of it
was being rebuilt. Jones and McClure testified without contradiction that U. S. Highway
No. 85, leading north to Magdalena. New Mexico, was rough. Goodin testified credibly,
and the official New Mexico highway map also shows , that in 1949 about 50 miles of
U. S. Highway No. 54 below Corona, New Mexico, had a rough gravel or dirt surface.
E. B. LAW AND SON 847
during the winter months from November through February when its business
was heaviest."
The time schedules which Respondent expected its drivers to maintain, and
the times which drivers actually took, for long runs indicate that they operated
their units at average speeds ranging from 35 to nearly 50 m. p. h.21 In main-
taining these schedules and average speeds the drivers necessarily had to drive
their equipment at speeds substantially in excess of the average (and in excess
of the maximum speed limits permitted by State law 28) in order to offset the
time lost during stops for refreshment, fuel and oil, checking of tires and
running equipment, required stops at railway crossings, and periods of slow
speed required in going through towns, populated areas, and through mountains
or hilly country. These facts 'indicate that the trucks were generally driven
at higher speeds whenever driving conditions permitted in order to maintain
the transportation schedules, with inevitable wear and tear on. the equipment.
The record shows, and I find, that Jones' truck developed differential trouble
near Quemado, N'ew Mexico, late in April 1949 ; 29 investigation disclosed a
tooth sheared off the ring gear which caused the whole assembly to give way;
a new gear and pinion set was installed at a cost of about $150 on April 27, 1949.
Respondent argues this damage could only have been caused by rough handling
of the truck, such as applying power too quickly through the clutch and jerking
the truck-trailer when loaded. However, the testimony of Jones and Deaton,
which I credit, indicates that rough handling is only one possible cause of
differential trouble, that worn bearings in the assembly and other mechanical
defects might cause it, as well as the strain of driving over hilly terrain;
it is not possible to ascertain definitely, from mere examination of the differential
assembly, exactly what caused the breakage ; stripped ring gears, broken rear
axles, and similar failures of running parts are not uncommon in truck operation.
Respondent had no one observing Jones' operation of his truck, so that the
exact cause of the damage is a matter of opinion. After considering all the
testimony on this point, I am not satisfied that Jones caused this breakage.
After considering all of the testimony involving the relation between Jones'
operation of his equipment and the cost of repairs thereto, I have concluded
that Respondent has not sustained the burden of proving that Jones was the
sole or proximate cause of the damage. I am therefore impelled to the con-
26 Donald Law testified that he had chosen the period from January to May 1949 as
representative of Respondent 's experience in maintenance cost of its fleet.
"This finding is based on the following credited testimony. Earl Law said the El Paso-
Lordsburg run, 162 miles, should take 4-414 hours (average 36-40 m. p. h.) ; Goodin said
he drove the Las Cruces-Lordsburg run, 118 miles, in 3 hours (average about 39 m. p. h.).
Donald Law said the Las Cruces-Magdalena run, 178 miles, should take 41/2-5 hours
(average 36-40 m. p. h.) ; Goodin's time for that run indicates he averaged over 40
in. p. h. Goodin says he made the Las Cruces-Phoenix, Arizona, run, 374 miles, in 7-9
hours, averaging 45-50 m. p. h. ; he usually drove the Lordsburg-Phoenix section of this
trip, 255 miles, in 6 hours (average of about 42.5 m. p. h.). Donald Law said the Holbrook,
Arizona, run, 401 miles, usually took 91/2-10 hours (average of 40-42 m. p. h.) ; Goodin
usually made it in 10 hours (40 m. p. h. average). Deaton drove the Lordsburg-Globe,
Arizona, run, 164 miles, in 4-41/.2 hours, averaging 39 m. p. h. Goodin usually took 6-61/2
hours for the Las Cruces-Tucson, Arizona, run, 276 miles (average 42-46 m. p. h).
Averages in parentheses were figured by the usual time-rate-distance formula.
25In 1949, 50 m. p. h. was the maximum legal speed limit for trucks on the open
road in New Mexico. See New Mexico Stat. Annot. 1941, ch. 68, Sec. 504, as amended.
2DThis apparently occurred on the route from Las Cruces, through Magdalena, New
Mexico, to either Holbrook or Winslow, Arizona, along U. S. Highways 85 and 60, part of
which runs through mountainous country.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elusion and I accordingly find that such damage was substantially attributable
to the nature, demands, and hazards of Respondent's business.'
Accidents.-I find from the testimony of Donald Law, and the admissions of
Jones, that in the winter of 1948-1949 Jones was responsible for an accident at
a refinery in El Paso, Texas, when a loaded tank-trailer was pushed off its
props and its forward end fell to the ground because Jones, in attempting to
back his tractor under it to connect the two units, failed to set his air brakes
(which were connected with the tank-trailer brakes) to prevent the trailer
from moving backward. Donald Law admitted, however, that no gasoline was
lost and the tank was not .damaged, except that two small connections on the
airlines between trailer and tractor were broken and had to be replaced. Jones
was not reprimanded by Donald Law for this accident, nor did Respondent
consider it cause for discharge; and it was not stated to Jones as a reason for
his discharge. Jones admitted he had three other accidents : one involved
damage to a taillight on a small truck which stopped suddenly in front of Jones'
truck near Hatch, New Mexico ; the other driver made no complaint, and
Respondent apparently never had to pay a claim on it. As for two admitted
accidents at Whitespur, Texas, and in Las Cruces, Respondent introduced no
proof as to the nature of each or the damage, if any, done to Jones' equipment.
These accidents were-not cited to Jones as a reason for discharge. I therefore
find that none of these accidents constitutes substantial proof that Jones abused
his equipment, and that they were not the cause of his discharge.
Flat tires.-Respondent cites, as abuse of equipment, two instances when a
tire on Jones' tractor was found hot and smoking after a run and was ruined,
and claims such damage could occur only by carelessly running the truck a
long distance on a low or flat tire. There is a conflict of testimony as to whether
a low or flat tire on a truck can easily be detected by the driver while the truck
is in motion. I find it unnecessary to resolve this conflict, however, because
Earl Law, Deaton, Moore, Jones, and McClure testified credibly, and I find, that
a low or flat tire is hard to detect on the trailer at any time, and on truck or
trailer on a rough road or where the unit is driven under windy or bad weather
conditions. The record does not disclose whether the ruined tires were on
Jones' truck or trailer. I have found that many of the routes trateled by the
Law trucks, particularly the Lordsbiirg road, were rough. Earl Law admitted
that New Mexico experiences sand. storms and high winds in the spring of the
year. There is no proof in the record as to the road Jones was traveling when
the tires were ruined nor as to the weather conditions prevailing. It is clear from
the testimony of all four drivers named above that they have all experienced
flat tires under varying conditions, and that such incidents are not uncommon
occurrences in Respondent's business. Respondent offered no proof of the cost
of replacing the tires ; nor was such an item charged by Respondent in the repair
and maintenance bills for Jones' truck introduced at the hearing. In addition;
the destruction of the tires was not cited to Jones as a reason for his discharge.
I am not satisfied from the evidence on this point that the ruined tires were
caused by abuse of the equipment. I conclude, and find, that they were not
a cause for Jones' discharge.
Respondent also contends it was justified in discharging Jones because he
violated the State law and Interstate Commerce Commission regulations pro-
10 Other trucks in Respondent's fleet have been in accidents causing extensive damage and
costly repairs ; another GMC truck, similar to that of Jones, was wrecked and required
extensive repairs ; the truck of E . It. Sides required a complete motor replacement in
February or March after Sides had to use the motor as a brake on a hill where his airlines
failed.
E. B. LAW AND SON 849
Whiting speeding, that he violated other rules of the Commission, and that he
jeopardized life and property while transporting inflammable products through
villages, communities , and various national forests in New Mexico . None of
these reasons were stated to Jones as a reason for discharge . . I have already
found that Respondent 's drivers often drove in excess of the maximum rate of
speed permitted by State law in order to maintain their schedules, but Respond-
ent took no steps to punish other drivers therefor3' There is no proof whatever
that Jones' operation of his truck in any way jeopardized any persons or prop-
erty, public or private. Jones admitted he did not always stop at railway cross-
ings, as required by I. C. C. rules, but Respondent never censured him for this.
The same holds true for his admitted failure to record correct running time in
his driver's logbook. It is apparent that Respondent introduced these reasons
at the hearing as a general make-weight in an effort to build up its contention
that Jones was an inefficient employee who merited discharge.
While it appears from all of the testimony considered above that Jones vio-
lated speeding laws and perhaps other rules and regulations, Respondent's con-
duct toward him prior to and at the time of his discharge impels me to the
conclusion that these shortcomings were not the motivating reasons for his
discharge. As I have found above, neither his speeding, accidents, alleged abuse
of his equipment, or other violations of State law or I. C. C. rules were stated
to him on May 6, 1949, as the reasons for his discharge, as might reasonably be
expected if Respondent had in fact "reached the saturation point" by May 5
in enduring his alleged continual delinquencies (as Donald Law claims), and
if they were in fact the true reason for the discharge. Donald Law, who ini-
tiated the discharge, said that while he considered each instance of speeding
reported to him as a cause for discharge of Jones, he decided to "go along,with
him" as far as he could because Jones was one of the old employees and "had
been doing a very reputable job." This estimate of Jones' ability apparently
discounts the heavy cost of maintenance and repair on his truck in February,
and indicates that Respondent was not unduly concerned over it and did. not
consider it as any reflection on his ability. Despite his shortcomings and the
claimed cost to Respondent thereof, Respondent was content to keep Jones in
its employ until it knew that he had held a meeting with the union representa-
tives. As soon as it made sure, through Carl Law's visit to the meeting, that
Jones had talked to the union agents, Jones was discharged, and the only reason
given him, as I have found above, was the fact of his mere conference with the
union men, and Respondent's inference therefrom that he favored the Union
and its intention to keep men who were interested in the Union off its payroll.32
31I do not credit the vague testimony of Earl Law that he once observed another un-
named driver speeding and discharged him for that reason . Respondent did not maintain
road patrols to check on its drivers ' compliance with applicable laws and regulations, nor
did it have any mechanical devices on its tractors to record driving speeds on trips.
Jones and McClure testified without contradiction, and I find, that only once were
Respondent's drivers warned by the Laws to slow down going through a town in New
Mexico , and that was on the basis of warnings from State police.
"I do not credit Earl Law's attempted explanation of the discharge as a "layoff" of a
less efficient employee in a seasonal decline in business , because ( 1) if Jones were as
hard on equipment as Respondent claims , its alleged policy of laying off the least efficient
drivers would clearly have dictated Jones' layoff in March or April in place of one of
the four other drivers laid off in that period, as to whom no evidence of comparative
inefficiency was adduced ; ( 2) within 2 days after the alleged " layoffs" of Jones and
McClure , two other drivers, Craig and Sides , were transferred from Lordsburg to Las
Cruces to take their places, which indicates there was no decline in business at the Las
Cruces terminal to warrant a layoff at that time : the fact that four more drivers; includ-
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is clear from these considerations that Jones' embryonic union activity, and
not his past record, was the motivating factor in his discharge, and that his
alleged shortcomings are now advanced by Respondent in an attempt to conceal
the true reason. That this was Respondent's plan and purpose is borne out by a
discussion which Dispatcher Wingert had with Moore in May some time after
the discharges. In that talk Wingert asked if Moore had talked with the
"union boys," meaning Jones and McClure. Moore said he had not seen them in
quite a while, and then asked Wingert why Earl Law did not join up with the
Union and "outsmart" them, because he had heard from Jones and McClure
that they would claim back pay. Wingert replied that Earl Law "could say he
fired them because they were hard on equipment, especially Cleo (Jones)." 3i
This was an indication that Respondent would employ pretexts to support the
discharges if litigated.4
On the basis of all the facts and considerations set forth above, I conclude
and find that Jones was not discharged for any of the reasons advanced by
Respondent at the hearing and in its brief; but was discharged on May 6, 1949,
because he had attended a meeting with representatives of the Union the night
before, and that Respondent, by its discharge of Jones for the reason aforesaid,
has discriminated against him in regard to his hire and tenure of employment,
thereby discouraging membership in the Union, and has interfered with, re-
strained, and coerced its employees in the exercise of rights guaranteed them
by Section 7 of the Act, all in violation of Section 8 (a) (3) and (1) of the Act.
E. The discharge of J. D. McClure
J. D. McClure was Respondent's second oldest driver in point of service at
Las Cruces, having worked for Law Brothers and Respondent steadily from
December 1946 until his discharge on May 6, 1949, except for one layoff from
March through May 1947 due to a seasonal slack in the business. For some
time prior to his discharge, he had been driving a 1948 model KB-81 Inter-
national tractor, which hauled the standard 5,000-gallon tank trailer used by
Respondent. It was a somewhat smaller and slower truck than others used
by Respondent, having a smaller motor and lower-rated horsepower.
McClure had been invited by Jones to attend the meeting with the union
representatives at the latter's home on May 5, but he was unable to attend
because he had hauled a load of gasoline that day to Magdalena, New Mexico,
and had returned to the terminal late, arriving between 9: 30 and 10 p. in. On
arrival, he picked up his orders for the next day from the oil room in the
terminal and went home about 10:30 p. m. His new orders required him to
• drive on the morning of May 6 to El Paso to load gasoline, and thence to haul
the load to Lordsburg, New Mexico. He took the truck home with him. On
the 6th he left home between 4: 30 and 5 a. in. and drove to El Paso to load.
The route from El Paso to Lordsburg leads back through Las Cruces and, while
driving back toward Las Cruces, an airline broke on his trailer, requiring him
to drive into the terminal for repairs. When he reported to the office Earl
Law handed him a paycheck which included compensation for his work to
ing Carl Law, were laid off after May 6. supports this conclusion, because Earl Law says
his brother Carl was next laid off, on June 30, 1949 (nearly 2 months later) and the
three other drivers were laid off after him ; (3) Earl Law said Respondent had been
keeping McClure, another alleged inefficient employee, on the job because "help was scarce."
3a This finding is based on the credited testimony of Moore ; Wingert admitted he may
have had the talk with Moore, but merely denies the statement as to the reason Earl Law
could give for the discharges.
84 Cf . English Freight Company, 61 NLRB 375, 384 , enfd . 152 F. 2d 756 (C. A. 5).
E. B. LAW AND SON 851
date (including his trip of that morning to El Paso and return), together with
vacation pay. McClure asked what the check was for, and Earl Law said it
was for the union meeting at Jones' house the night before. McClure said he
did not attend the meeting. Earl Law said that he knew this, but asked, "You
were going, weren't you?" to whihch McClure replied that he would have gone
if he had returned in time. Law said that he also knew McClure was a "big
strong union man" and he didn't like people around who talked in favor of the
Union. He also told McClure that he had paid off Jones previously, and that
he was looking for the other men that were supposed to attend the meeting and
would fire them when he found out who they were. McClure said he thought
it was a "dirty deal," to which Law replied that he couldn't help it, that was
the way it was going to be, and that if McClure liked the Union so well , he could
go and get a union job. McClure then gathered his personal belongings from
his truck, and Dispatcher Wingert drove him home. On the way, McClure
asked how the Laws found out about the meeting, and Wingert said it was
through the drivers of another local transportation concern in Las Cruces.
Wingert also discussed what the Union could do to drivers in a small concern,
claiming the Union was not good in a small outfit, and that it was only good
where "you weren't around the boss all the time." 86
In its brief, Respondent intimates that McClure's testimony as to Earl Law's
statement of dislike of people who favored the Union, and his threat to fire
other persons invited to the meeting, are not to be credited because neither
Moore, England, nor Goodin, the other invitees, was discharged; that Respond-
ent had always had on its payroll a union man , Bernice Denton, who was not
fired, and that Respondent had previously expressed willingness to have a Union
if the employees wanted one. These facts, while established by the record, do
not detract from the validity of McClure's testimony. The mere facts that the
threat to fire other employees invited to the meeting was not carried out, and
that a known union driver was not discharged, do not support the contention
that Respondent was guiltless in the discharge of Jones or McClure Se In addi-
tion, Moore, England, and Goodin had already recorded their vote against the
Union in the coercive open ballot of April 25, 1949, and Respondent clearly felt
that these drivers had been brought in line with Respondent's views contra the
Union. It is also significant that the Laws indicated to Goodin, after the dis-
charge of Jones and McClure, that they were keeping him on, although he had
been invited to the meeting, because he was not considered one of the leaders in
the union movement, as they believed Jones and McClure to be. This conversation
with Goodin will be discussed in detail below. Finally, the open hostility of the
Laws, to the Union, expressed to Wolfe and various employees in the form of
threats, and its unlawful oral and written interrogation of employees about
their union beliefs, all lend support to McClure's testimony as to his conversation
with Earl Law.
Respondent claims that McClure was discharged for two reasons, (1) starting
out late in the morning , making late deliveries to customers , and reporting back
late to the terminal, and (2 ) being drunk on the job. The second reason will be
considered first. Earl Law stated that McClure had been "drinking on the job,"
but on cross-examination he admitted he did not know of any occasion when
McClure actually drank on duty. The only other witness on this point was
Goodin, brother-in-law of McClure, who lived with McClure during the early
35 These findings are based on the uncontradicted and credited testimony of McClure.
$B Inter-City Advertising Company of Greensboro, N. C., Inc., 89 NLRB 1103; Penn-
sylvania Greyhound Lines, Inc., 1 NLRB 1, enfd. 303 U. S. 261 ; The American National
Bank of St. Paul, 52 NLRB 905, enfd. 144 F. 2d 268 (C. A. 8).
852 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD
part of 1949. Goodin testified that when McClure went on duty, he was usually
sober and always in condition to drive, even though he sometimes drank suffi-
ciently the night before to have a hangover the next morning . There is no testi-
mony in . the record ,. however, that McClure ' s drinking ever prevented him from
driving .his truck for Respondent at any time . His drinking habits were not
cited' to him as a reason for his discharge . On the basis of these facts, I find
that McClure was not guilty of drinking on the job and that his off-duty con-
sumption of liquor did not render him unable or unfit to drive for Respondent.
I therefore conclude that this alleged reason is without substance , and find that
it was not a motive for the discharge.
The claim that McClure was tardy in making deliveries and returning from
trips requires a preliminary explanation of the nature of Respondent 's operation.
.
Respondent is in competition with a number of other large transporters of
petroleum products in the Texas-New Mexico-Arizona area . Respondent's cus-
tomers in New Mexico and Arizona maintain bulk storage plants from which
they distribute petroleum products, and they usually desire to have Respondent
deliver such products to their plants as early as possible in the day , when they
are sure to be on hand to unload the tank-trailers . As a result , Respondent's
drivers are instructed to deliver their loads to customers early in the morning,
usually as close to 8 a. in. or opening time as possible. In order to accomplish
this, Respondent maintains the following loading and delivery schedule so far
as possible: Where the customer is located at a distant point, and a long haul is
required , the driver takes his unit to the refinery at El Paso, Texas , and loads
it in the afternoon before the day on which delivery is required ; the driver brings
the loaded trailer back to Las Cruces that evening, and either parks it overnight
at the terminal or his home ; he then drives it either from the terminal or his
home, as the case may be , early the next morning to the destination where he
unloads as quickly as conditions will permit and drives his empty unit back to
the terminal that afternoon or early evening, where it is serviced for the next
run ; after the long run , the driver is given a short run for the next day, in which
case he drives his unit from the terminal or his home to the refinery early the
next morning to load , and then drives it directly to destination , unloads, and re-
turns empty to the terminal the same afternoon ; he then gets an order for a
long haul the next day, and repeats the loading and delivery procedure first above
described. On long runs, the trailer is normally loaded at El Paso the after-
noon or evening before, and the run with load is made from Las Cruces the next
morning, with return to that point.
There is no fixed time for the driver to start his loaded run to the bulk plants ;
his only instruction is to deliver the load there as early as possible , and the exact
time when he leaves his home or the terminal with the loaded truck is left to
his discretion , as he knows from past experience how long the trip should take.
The same rule applies on the short hauls : the driver is supposed to time his
start from home ( or terminal ) in the early morning so that he can drive to El
Paso, load, and make the run to destination early enough to catch the cus-
tomer before he leaves his plant on his own deliveries . If-the driver starts his
delivery trip late in the morning and arrives at destination at 10 a. in. or later,
the customer frequently is not available to receive the load and, in consequence,
the driver may have to wait several hours or more before being unloaded ; in
that event , the driver is that much later in returning to the terminal, which
often requires Dispatcher Wingert to wait overtime to check the truck in, and
refuel and service it for the next run ; if the driver gets in after 9 p. in., the
E. B. LAW AND SON 853
dispatcher usually does not wait for him, and the driver's order for the next day
is left for him in the oil room at the terminal.3'
Earl and Donald Law testified that McClure continually drove his truck to
the El Paso refinery late in the morning ; Earl Law deduced this from the load-
ing times shown on the freight bills from the refinery, reasoning that since the
trip to El Paso normally took a certain time, McClure's arrival at the refinery
at a late hour indicated he must have started late from Las Cruces; Donald.
Law made the same assumption of a late start on other trips from the fact that.
other drivers were making their runs "on time" and returning to the terminal
earlier than McClure. However, none of the freight bills relied on by Earl Law
were produced at the hearing, and Donald Law produced no record facts to,
support his conclusions.38 The Laws claimed McClure delivered loads late at
bulk plants "practically all the time," but this is likewise a deduction from a-
comparison of their recollection of the usual time of return of other drivers
and the dispatchers' reports of McClure's later returns ; Donald Law claimed
the time of return is governed mainly by the time the driver starts out. in the
morning, that if he delivers his load at destination as early as possible, he should
be back by 5 or 6 p. in. at the latest. However, he drew this conclusion only as
to certain trips (not identified clearly in the record), not as to all; no logbooks
of other drivers are produced to show the exact times of arrival at any destina-
tion. The Laws claimed that McClure indulged in these practices continually
during the last 4 or 5 months of his employment ; Donald Law warned him about
it 8 or 10 times, but he continued to be tardy twice a week both in delivering
loads to destination and in returning to the terminal; Respondent received re-
ports on his late returns during this period from Narmour, the former dispatcher,
and Wingert, the present dispatcher, who advised that McClure continually came
into the terminal late at night, requiring the dispatcher to wait for him beyond
the normal closing hour (either 5 or 6 p. m.), and that McClure often came in
after 9 p. in. in which case the dispatcher waited for him until that hour and
then went home ; one other driver, Chitwood, had also been returning late during
the same period but he corrected this habit after one warning from Donald Law.
On May 5, 1949, McClure had hauled a load to Magdalena, New Mexico, return-
ing from that trip between 9:30 and 10 p. in.; Wingert waited for him until 9
p. in. and then went home ; when Donald Law learned of this incident from
Wingert, he had McClure's final paycheck made out the next morning while
McClure was on a trip to El Paso to load for a trip to Lordsburg, New Mexico ;
the check was given to McClure by Earl Law when he came into the terminal from
El Paso under circumstances which have been related above. McClure admitted
that he came in late at times from various trips, and that some one occasionally
waited for him at the terminal; he also admitted returning quite late from
the Magdalena run the night of May 5, and does not recall Wingert being there
when he came in. On the basis of all of the above testimony, I conclude, and
find, that at most, McClure was occasionally late in reporting to the refinery
at El Paso to load his truck and that he frequently returned to the terminal
rather late in the evening.
However, granting these shortcomings and that Respondent had the right to
discharge McClure therefor, the question to be decided is whether McClure was
87 These findings are based upon the uncontradicted 'testimony of Earl Law, Donald
Law, McClure, and Deaton. -
38 The official ,dally logs kept by the drivers in accordance with I. C. C. regulations would
show graphically, by reference to hours of the day, the entire record of each trip, including
times of starting, arrival at destination, arrival at terminal, times and duration of all
stops, and actual running times.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
actually discharged for these deficiencies or for the reason, given to him at the
discharge as found above, based on his apparent interest in the Union and ad-
mitted intention to have attended the meeting with the union men the night
before.
Certain other facts in the record persuasively indicate that his deficiencies
were not the motivating reason for his release :
1. Both McClure and Goodin testified credibly, and I find, that they often came
in late after a trip, and that the dispatcher was not always waiting for them
when they came in as late as 9 or 10 p. in. Donald Law testified credibly, and I
find, that there was no definite time by which drivers were required to be back
at the terminal after a run, and that when they came in after 9 p. in. from a
long run, their delivery orders for the next day were left for them in the oil
storage room at the terminal. McClure followed this procedure when he returned
late from the Magdalena run on May 5, 1949. McClure testified without sub-
stantial contradiction, and I find, that late returns from long trips might be
caused by road or weather conditions, flat tires, truck trouble, or other similar
reasons.' It is therefore clear that late returns were not uncommon and were to
be expected in the course of the Respondent's operation, and that Respondent
had provided for such instances by the practice of leaving the driver's orders for
the next day where he could pick them up and go out on the new trip the next
morning without delay. There is no credible evidence in the record that any
other drivers had been substantially disciplined in any fashion, much less dis-
charged, for coming in late.
2. The record does not disclose that Respondent suffered any real inconvenience
or detriment from McClure's tardiness. There is no proof of complaints from
customers or loss of business due to his late deliveries. His tardy returns
caused no apparent interruptions in the business, as he followed the usual pro-
cedure of picking up his orders for the next day from the oil storage room when
he came in late, and proceeded to carry them out the next day in the usual
course. -
3. McClure's truck was smaller and slower than Respondent's other tractors.
It is obvious that a slower truck would lengthen the time of trips to the bulk
plants and also make the time of return later than would be the case with faster
trucks. McClure usually made the Magdalena run in 5 to 5% hours, somewhat
longer than the average of 4% to 5 hours for other drivers; on that trip he
drove through hilly country which cut down his cruising speed ; his average
speed for the trip was about 35 in. p. h. On his rub to Magdalena on May 5, he
was driving another truck, the slowest in the fleet, while his regular truck was
in the shop for repairs; at Magdalena that day he spent about 2 hours unloading
due to a slow pump at the bulk plant.90 These facts denote some reasons why
McClure. was probably slower in his runs, and later in returning, than other
drivers. They must have been known to Respondent, especially where McClure's
lateness continued over 4 or 5 months. Yet the Laws made no attempt in all
that time to correct the situation other than to warn McClure and then sum-
marily discharge him the morning after the union meeting to which he had been
invited. It is further significant that, although there were some unusual circum-
stances which afford a reasonable explanation for McClure's tardiness on May 5,
Respondent made o attempt to ascertain these facts or consider them prior to
his summary discharge. -
39 As found above, many of the roads were in bad condition ; Earl and Donald Law
admitted the existence of bad weather and high winds in the spring ; and Donald Law
admitted truck trouble could delay trucks in returning.
40 These findings are based on the uncontradicted and credited testimony of McClure.
E. B. LAW AND SON 855
4. The Laws gave conflicting testimony as to the exact nature and cause of
McClure's release. Donald Law testified that McClure's late return from
Magdalena on the night of May 5 was the culminating event which.brought him
to the "saturation point" and caused him to discharge McClure the next day.
However, his father; while at first calling it a "discharge," attempted to show
that McClure was "laid off" for business reasons ; he said there was no specific
event occurring just before the "discharge" which caused him to pick McClure,
that his release was in the course of a normal "layoff" at the end. of the heavy
winter season, and that both Jones and McClure were released in accordance
with Respondent's policy of keeping the most efficient men, and laying off the
most inefficient. I have already rejected the "layoff" theory for reasons stated
in my consideration of Jones' discharge." It should also be noted that Earl Law
said nothing to McClure which would indicate that he was being "laid off."
5. It is perhaps of greatest significance, in evaluating the reasons advanced by
Respondent, that in McClure's case (as with Jones), when Earl Law gave McClure
his final paycheck, and McClure asked what it was for, Earl. Law did not men-
tion any of his long-continued shortcomings, upon which Respondent now relies,
but only gave him the single reason of his interest in the Union based on his
admitted intention to have attended the union meeting the night before. If
McClure's delinquencies were so substantial and so long-continued, and were
uppermost in the Laws' minds when they discharged him, it is reasonable and
natural to assume that Earl Law would have stated them when McClure asked
-why he was discharged; Law's failure to cite them at the time compels me
to conclude that they were not the motive for the discharge. This leaves Mc-
Clure's adherence to and interest in the Union as the only proven and credible
reason for his release.
6. Sometime on May 6, after the discharges of Jones and McClure, Goodin,
brother-in-law of McClure, had a talk with Earl and Donald Law about the
discharges when he reported in from a trip. Earl Law told Goodin that McClure
had been discharged, and asked Goodin if he wished to continue working for
Respondent. Goodin asked why McClure had been discharged, and Earl Law
said there had been a union meeting called for the night before. Goodin said
he had been invited to the meeting, same as McClure had. Earl Law replied
that he knew it, but that Goodin "was just one of the boys, wasn't one of the
leaders in the group at all." Donald Law then said that if Goodin wanted to
keep on working, he could stay on the job, to which Goodin agreed. Goodin had
been invited to attend the meeting but did not do so.42 Respondent found this
out from Carl Law's . open attendance at the meeting. Respondent also knew
that Goodin had signed the "No" column on the open ballot sheet of April 25.
When Donald Law invited Goodin to remain on the job, it was clearly on the
assumption that Goodin was still of the same mind about the Union as seemed
apparent from the ballot and his absence from the meeting, and that, as stated
by his father, he remained "just one, of the boys," as distinguished from an
active union adherent or leader. This conversation further supports the con-
clusion that the only reason for McClure's discharge was Respondent's belief
that he was actively interested in and favored the Union. Aside from this
aspect, however, the remarks of the Laws conveyed a clear threat to Goodin
that he could keep his job only if he remained "one of the boys," and did not
become active for the Union as Respondents believed his brother-in-law to be.
I therefore conclude, and find, that Respondent, by this threat to Goodin inter-
fered with, restrained, and coerced its employees in the exercise of rights guar-
41 See footnote 32 above.
42 This finding is based on the uncontradicted and credited testimony of Goodin.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anteed to them by Section 7 of the Act, and thereby violated Section 8 (a) (1)
of the Act.
After consideration of all the pertinent testimony, and upon the basis of the
above findings and considerations, I am convinced that the reasons advanced by
Respondent at the hearing for the discharge of McClure were not the motivating
reasons for his discharge, and I therefore conclude, and find, that he was dis-
charged on May 6, 1949, because Respondent knew he had been invited and
expected to attend the union meeting of the night before, and because Respondent
believed that he favored the Union and was one of the leaders among the drivers
in advocating organization of Respondent's employees.
. In reaching this conclusion as to McClure's discharge, and a similar one with
regard to Jones' discharge, I have noted that Respondent has assigned various
reasons for the discharges, some of them definite, others vague and nebulous,
and some conflicting, but all of them involving numerous violations of State
law, Interstate Commerce Commission regulations, and Respondent's own rules
of operation. As indicated above, Respondent has proven some of these viola-
tions, and others have been found without substance. In this situation the
observations of the Board in Houston Cartage Company, Inc., 2 NLRB 1000,
regarding discharges of employees in the transportation industry, are pertinent.
In finding in that case that the defense of discharges for alleged infractions of
rules was not persuasive, the Board said (2 NLRB at pages 1005, 1006) :
It is true that to some extent Brooks did not perform his duties in strict
compliance with the respondent's rules. It is also true that at the hearing
it was shown Brooks made two additional stops on Thursday October .22,
not mentioned in the letter of dismissal, on personal business. It is not for
us to determine whether or not these infractions of the respondent's rules
were sufficiently grave to justify the discharge of Brooks. What we are
concerned with is whether or not Brooks was discharged because of these
infractions or whether the respondent, desiring to rid itself of Brooks be-
cause of his union activities, searched for some cause to cloak its real
motive for the discharge. Experience has shown this Board that there
is no field of employment where employers can so easily find means to cloak
their real motives for discharging employees as in the employment of bus
or truck drivers. In practically every case which has come before us
involving such employees, it has been charged and proven that the dis-
charged employees have exceeded the speed limit, left their route or made
stops not strictly in line with their duties. But from the very nature of
the work of bus or truck drivers it is apparent that an employer has only
to follow any truck or bus driver for a comparatively short time, to find
him guilty of many such violations. We are, therefore not impressed with
the sincerity of an employer who advances such reasons for a discharge,
where he fails to show that such violations were flagrant or repeated and
where the surrounding circumstances indicate that the employee was active
in union activities to which the employer was opposed.
I conclude, and find, that Respondent, by its discharge of McClure on May 6,
1949, for the reason found above, discriminated against McClure in regard to
his hire and tenure of employment in order to discourage membership in the
Union, in violation of Section 8 (a) (3) of the Act, and by such discriminatory
discharge Respondent also interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed to them by Section 7 of the Act, in viola-
tion of Section 8 (a) (1) of the Act.
E. B. LAW AND SON
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
857
It is found that the activities of Respondent set forth in Section III, above,
occurring in connection with the operations of Respondent described in Section
I, above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act, the Trial Examiner
will recommend that it cease and desist therefrom and take certain affirmative
action in order to effectuate the purposes and policies of the Act.
The Trial Examiner has found that Respondent discriminated against W.
Cleo Jones and J..D. McClure in regard to their hire and tenure of employment
because of their union interest and activity, thereby discouraging membership
in the Union, a labor organization. It is, therefore, recommended that Re-
spondent offer to each of said employees immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to his seniority
and other rights and privileges, and that Respondent make each employee whole
for any loss of pay he may have suffered by reason of Respondent's discrimina-
tion against him. It is recommended that the loss of pay for each employee be
computed on the basis of each separate calendar quarter or portion thereof
during the period from Respondent's discriminatory action to the date of a
proper offer of reinstatement ; the quarterly periods, hereinafter called "quar-
ters," shall begin with the first day of January, April, July, and October; loss
of pay shall be determined by deducting from a sum equal to that which each
employee would normally have earned for each quarter or portion thereof, his
net earnings 941 if any, in other employment during that period ; earnings in one
particular quarter shall have no effect upon the back-pay liability for any other
quarter. It is also recommended that Respondent be ordered to make available
to the Board upon request payroll and other records to facilitate the checking
of the amount of back pay due ."
The number and variety of unfair labor practices found above clearly indi-
cates that Respondent has been and is disposed to defeat concerted activity
and self-organization among its employees by any conceivable means , and dis-
closes an attitude on the part of Respondent of fundamental hostility to the
purposes of the Act. This- attitude and conduct also indicates the likelihood
that Respondent may resort in the future to similar or related unfair labor
practices proscribed by the Act. The preventive purposes of the Act will be
thwarted unless the recommendations herein and the Board's order thereon
are coextensive with the threat. The Trial Examiner will therefore recom-
mend that Respondent cease and desist from in any manner infringing upon
the rights of employees guaranteed in Section 7 of the Act.
43 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working
elsewhere than for Respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See
Crossett Lumber Company, 8 NLRB 440 . Monies received for work performed upon
Federal, State , county, municipal , or other work -relief projects shall be considered as
earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
F. W. Woolworth Company, 90 NLRB 289.
929979-51-vol. 92-56
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact and the entire record in the case I make
the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local No. 941, AFL, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of W.
Cleo Jones and J. D. McClure, thereby discouraging membership in a labor
organization, Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (3) of the Act.
3. By such discrimination, and by otherwise interfering with, restraining, and
coercing its employees in the exercise of rights guaranteed in Section 7 of the
Act, to the extent herein found to be violative of the Act, Respondent has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]