English Freight Co.

National Labor Relations Board - Board Decisions

Apr 23, 1946

67 N.L.R.B. 643 (N.L.R.B. 1946)

In the Matter of ENGLISH FREIGHT COMPANY and INTERNATIONAL
BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN &
HELPERS OF AMERICA , LOCAL 745, AFL
C'aye No. 16-C-1130.-Decided April 23, 1946
DECISION
AND
ORDER
On January 9, 1946, the Trial Examiner issued his Intermediate
Report in the above -entitled proceeding , finding that the respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action as set forth in the copy of the Intermediate Report
attached hereto. Thereafter , counsel for the Board filed exceptions
to the remedy recommended by the Trial Examiner and a supporting
brief. No exceptions to the Intermediate Report or brief was filed
by the respondent . None of the parties requested oral argument be-
fore the Board at Washington, D. C., and none was had.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed . The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and brief of counsel for the Board, and the entire record
in the case, and hereby adopts the findings , conclusions , and recom-
mendations of the Trial Examiner with the addition noted below.
The Trial Examiner has recommended that the back pay for the dis-
criminatorily discharged employees be tolled from July 15, 1945, to
September 17, 1945. Counsel for the Board excepted thereto. As
set forth in the Intermediate Report, on or about July 15, 1945, the
complainants herein informed an agent of the Board in his official
capacity that they did not desire to return to the respondent 's employ;
however, they testified at the hearing before the Trial Examiner, which
opened on September 17, 1945, that they would give consideration to
an offer of reinstatement by the respondent , when made. While we
would not give controlling weight to every gratuitous statement by a
complainant as to his reinstatement desires, we feel that statements
like those herein, when made to an agent of the Board in the course of
67 N. L . It. B., No $2
643
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his investigation , should be regarded as a binding expression of the
employee's intent until repudiated by him . The Trial Examiner's
recommendation thus follows our general policy of not awarding back
pay to employees who have voluntarily removed themselves from the
labor market of their employers . Under the circumstances , we agree
with , and adopt , the recommendation of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor Relations Board
hereby orders that the respondent , English Freight Company, Dallas,
Texas , and its officers , agents , successors , and assigns , shall:
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers of America, Local
745, AFL , or in any other labor organization of its employees, by
discharging or refusing to reinstate any of its employees , or by dis-
criminating in any other manner in regard to their hire or tenure
of employment, or any term or condition of employment;
(b) Discharging or otherwise discriminating against employees
because they have filed charges or given testimony under the National
Labor Relations Act;
(c) In any other manner interfering with, restraining , or coercing
its employees in the exercise of the right to self -organization, to form
labor organizations , to join or assist International Brotherhood of
Teamsters , Chauffeurs, Warehousemen & Helpers of America, Local
745, AFL , or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in con-
certed activities , for the purpose of collective bargaining or other
mutual aid or protection , as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to C . G. Hunt, M. J. Canady, and C. C. Clevinger imme-
diate and full reinstatement to their former or substantially equiv-
alent positions, without prejudice to their seniority or other rights
and privileges ;
(b) Make whole C. G. Hunt, Al. J. Canady, and C. C. Clevinger for
any loss of pay they have suffered by reason of the respondent's dis-
crimination against them , by payment to each of them of a sum of
money equal to the amount which he normally would have earned as
wages from the date of his discriminatory discharge to July 15, 1945,
and from September 17, 1945, to the date of the respondent 's offer of
reinstatement , less his net earnings during those periods;
ENGLISH FREIGHT COMPANY 645
(c) Post in all the places of business wherein its employees are
engaged, copies of the notice attached to the Intermediate Report here-
in, marked "Appendix A."* Copies of said notice, to be furnished by
the Regional Director for the Sixteenth Region, shall, after being duly
signed by the respondent, be posted by him immediately upon receipt
thereof, and maintained by him for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for the Sixteenth Region in
writing. within ten (10) days from the date of this Order, what steps
the respondent has taken to comply therewith.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr Elmei Davis , for the Board.
Mr. Carl B Callaway, of Dallas, Tex., for the respondent.
Mess7s. T T. Neal and Neal Hodges, of Dallas, Tex, for the Union.
STATEMENT OF THE CASE
Upon an amended charge filed May 25, 1945, by International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 745, AFL,
herein called the Union, the National Labor Relations Board, herein called the
Board, by its Regional Director for the the Sixteenth Region (Fort Worth, Texas),
issued its complaint dated June 16, 1945, against English Freight Company,
herein called the respondent. The complaint alleged that the respondent had
engaged and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1), (3), and (4) and Section 2 ((;) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the
complaint, amended charge, notice of hearing, and notice of adjourned date
for the hearing were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that on specified dates the respondent, in violation of Section 8 (1), (3), and (4)
of the Act, discharged and has since refused to reinstate 3 named employees' "for
the reason that they joined or assisted the Union or engaged in other concerted
activities for the purposes of collective bargaining or other mutual aid or pro-
tection, and/or because one or more of them offered testimony before a Trial
Examiner of the National Labor Relations Board on or about September 12, 1944."
Pursuant to notice, a hearing was held on September 17, 18, and 19, 1945,
at Dallas, Texas, before the undersigned, the Trial Examiner duly designated
by the Chief Trial Examiner. The Board and the respondent were represented
by counsel and the Union, by agents. All parties participated in the hearing, and
-This notice, however, shall be, and hereby is amended by striking from the first para-
graph thereof the words "Recommendation of a Trial Examiner" and substituting in lieu
thereof the words "A Decision and Order "
' C G Hunt and M J. Canady on or about September 26, 1944, and C. C. Clevinger on
or about September 27, 1944.
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were afforded full opportunity to be heard , to examine and cross -examine wit-
nesses , and to introduce evidence bearing on the issues.
At the hearing , counsel for the respondent , in lieu of filing a written answer to
the complaint , stated orally that the respondent admitted the allegations of the
complaint concerning the nature and scope of its business and the Board's juris-
diction of the case; that it denied the allegations of the complaint concerning the
unfair labor practices ; and that it asserted affirmatively that the 3 employees
mentioned in the complaint were discharged for proper cause
At the beginning of the hearing , counsel for the respondent moved to dismiss
the complaint on the grounds that there had been an unreasonable delay between
the filing of the original charge and the issuance of the complaint ; that the dis-
charged employees mentioned in the complaint had advised an attorney for the
Board that they did not want reinstatement to their former positions with the
respondent ; ' and that the present proceeding would depril e the respondent
of its constitutional right to a trial by jury . This motion was denied.
During the course of the hearing , the respondent contended that it had been
prejudiced by the alleged delay of the Regional Director in handling the present
case. In support of this contention , counsel for the respondent offered to prove,
in substance , that in November , 1944, an attorney for the Board filed with the
Regional Director his written report of a complete investigation of the original
charge, in which investigation the respondent had fully cooperated ; that between
November, 1941, and May 25, 1945, no complaint was issued nor was any advice
given to the respondent concerning the status of the case; that the Union , having
lost an election conducted by the Board in October , 1944 , to determine the rep-
sentatives of the respondent 's employees , has since repeatedly informed the em-
ployees of its ability to force the respondent to reinstate any discharged em-
ployees with back pay; that, on May 25 , 1945, the Regional Director informed
the respondent of the filing of an amended charge; that the amended charge filed
on May 25, 1945 , was substantially the same as the original charge filed on October
2, 1944; that the respondent was also served with notice of a motion to consoli-
date the present case with a previous case before the Board and involving the
respondent , hearing in which previous case had been held in September, 1944;
that, on June 11, 1945 , the Board denied the motion to consolidate the cases ;
that, on June 16, 1945, the Regional Director advised the respondent of his hope
that the case might still be disposed of without the necessity of lengthy and
expensive formal procedure ; and that the respondent has sincerely believed it
has committed no unfair labor practices and, if the Board should issue a back
pay order , the respondent "would [thereby ] be prejudiced because it had not,
within a reasonable time, been able to ascertain just what its actual obligations
and liabilities were " 3 The undersigned rejected these offers of proof, stating
specifically , however, that he would receive any evidence relevant to the motives
of the respondent in discharging the men mentioned in the complaint
At the conclusion of the hearing , the respondent again mo-,ed to dismiss the
complaint on the ground that, in conducting the proceeding , the Board improp-
erly combines prosecuting and judicial functions . This motion was denied. An
uncontested motion by counsel for the Board to conform the complaint to the
proof as to minor details, such as dates and spelling of nacres was granted.
S Testimony on this particular point was subsequently offered and received
3 This was the only allegation of prejudice made by the respondent in its offers of proof
When counsel for the respondent had earlier moved the dismissal of the complaint on the
ground of delay in its issuance , the undersigned asked him whether he claimed injury
because of the loss of any testimony during the period of the delay. Counsel stated that
he did not know at that time of any such injury and no such claim was thereafter made
ENGLISH FREIGHT COMPANY 647
The hearing was closed after oral argument by counsel for the Board and counsel
for the respondent. Although the parties were informed of their right to file
briefs, none has been filed.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The respondent, English Freight Company, a Texas corporation, with its prin-
cipal office and place of business in Dallas, Texas, is engaged in transporting
general commodities in the States of Texas and Oklahoma, pursuant to authoriza-
tion of the Interstate Commerce Commission During the year 1944, the respond-
ent hauled in excess of 100 million pounds of freight, with a revenue in excess
of $1,000,000, of which approximately 35 million pounds of freight of a value
of about $400,000, was transported to and through States of the United States
other than the State of Texas. At the hearing, the respondent admitted that it
is engaged in interstate commerce as a common motor carrier, handles a sub-
stantial volume of trade in interstate commerce, and is subject to the jurisdiction
of the Board.
H. THE ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, Local 745, AFL, is a labor organization admitting to membership
employees of the respondent.
III. THE UNFAIR LABOR PRACTICER
A. Background
The respondent discharged driver C G. Hunt.on or about September 26, 1944,
and drivers M. J. Canady and C. C Clevinger on or about September 27, 1944.
At that time, two earlier cases involving the respondent were still pending before
the Board. The first of these cases, No. 16-R-978, hereinafter referred to as the
representation case, was based upon the Union's amended petition for an inves-
tigation and certification of representatives of the respondent's drivers pursuant
to Section 9 (c) of the Act. The other case, No. 16-C-1093, hereinafter referred
1 o as the previous complaint case, was initiated on July 5, 1944, by the Union's
charges under Section 10 (b) of the Act, that the respondent bad discharged
driver D. D Thomas because of his union membership and activities, and had
otherwise interfered with, restrained, and coerced its employees in the rights
guaranteed in Section 7 of the Act.
On September 5, 1944, the Board issued its Decision and Direction of Election
in the representation case, wherein it found that the respondent's over-the-road
drivers constituted an appropriate bargaining unit and directed that the Regional
Director conduct an election among them to determine whether or not they desired
to be represented by the Union. On September 23, the respondent filed a motion
that the Board reconsider its Decision and Direction, which motion the Board
denied on September 29. On September 25, the Regional Director informed the
respondent's attorney by telegram of his intention to conduct the election by mail
and requested the names and addresses of the drivers eligible to vote under
the Board's Direction of Election On September 26, the respondent telegraphed
the Regional Director the names and addresses of its over-the-road drivers, in-
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eluding Hunt, Canady, and Clevinger. In the election, 5 votes were cast for the
Union, 9 against the Union, and 4 ballots, including those of Hunt, Canady, and
Clevinger, were challenged by the respondent on the ground that they were no
longer in the respondent's employ. On October 14, 1944, the Board dismissed
the Union's petition in the representation case.
In the meantime, on September 12, and 13, 1944, a hearing was held before a
Trial Examiner in the previous complaint case. At this hearing, both Canady
and Clevinger testified as witnesses for the Board. In his testimony on this
occasion, Canady stated, tinter alma, that he and 14 other of the respondent's
drivers had joined the Union on June 18, 1944; that on that (lay, Superintendent
Cheatham told him, "You can't fool me, I know what you are all up to . . . You'd
better consider what you're getting into. It would be something you'd be sorry
of Study it over" ; that 2 or 3 weeks later, Cheatham showed Canady various
slips of paper, each containing the name of a union employee who, he said, had
withdrawn from membership; that Cheatham then asked Canady to withdraw;
that Cheatham prepared a union membership withdrawal slip which Canady
signed and left with Cheatham ; that Canady subsequently rejoined the Union ;
that Canady never saw the withdrawal slip he had given to Cheatham until
it later appeared at the Union's headquarters. Clevenger testified at the same
hearing, that, after joining the Union in June, 1944, he was induced to sign
a withdrawal slip prepared for him in the respondent's office by Homer McKinnon,
a clerk, who told him, "Quite a few had withdrawn" and that "some way" would
be found to discharge those employees who did not withdraw.' Although Hunt
did not testify at the hearing in the previous complaint case, McKinnon testified at
that time that he had been unsuccessful in his attempts to induce the union mem-
bership withdrawals of several of the drivers including Hunt, who was for the
Union "just as strong as he could be." According to his testimony in the instant
case, Clarence L. Callaway, the respondent's vice-president and general manager,
who ordered the discharges of Hunt, Canady, and Clevinger, attended the hearing
in the previous complaint case, and heard most, if not all the testimony given at
that time.
Thereafter, on April 0, 1945, the Board, in its Decision in this previous complaint
case,' credited the testimony of Canady, Clevinger, and McKinnon and found,
inter alia, that the respondent interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed by Section 7 of the Act through
Superintendent Cheatham's statement to Canady and through Cheatham's and
McKinnon's inducement of employees to withdraw from the Union.
B. The discharge of C. G Hunt
C. G. Hunt, who joined the Union on June 18, 1944, was employed by the respond-
ent from April 1944 until September 26, 1944 as a line driver on its 316-mile
overnight run between Dallas and Houston.' Leaving the respondent's Dallas
terminal on his outgoing trip at 10 o'clock on one night and beginning his return
trip from Houston at 10 o'clock the next night, with a lay-over each Saturday
night in Dallas, Hunt's schedule took him through 11 intervening Texas towns'
' Upon other testimony , the Board found that , in soliciting the union membership with-
drawals of Clevinger and other drivers, McKinnon was acting "with the full knowledge,
consent and approval of at least Cheatham "
5 Matter of English Freight Company, 61 N L It. B 375.
° Hunt had previously worked for the respondent for 20 months, beginning in 1936
° In the order reached by Hunt on his return trip from Houston to Dallas, they were
Huntsville, Trinity, Crockett, Palestine, Jacksonville, Tyler (about 100 miles from Dallas),
Mineola ( about 80 or 85 miles from Dallas ), Grand Saline , Edgefield , Willis Point, and
Terrell.
ENGLISH FREIGHT COMPANY 649
in which the respondent maintains freight stations In some cases, these freight
stations are located at junctions of the respondent's various line routes and serve
not only as bases for local deliveries and pick-ups by the station agents, as do
all of the respondent's stations, but also as so-called "breaking points" for the
transfer of freight from the trucks on one line route to those on another.
When Hunt reported for work at the Dallas terminal for his regular trip
to Houston at 10 o'clock on the night of September 26, 1944, he was discharged
by Assistant Manager Williams, pursuant to telephoned instructions received
from General Manager Callaway earlier in the evening This was immediately
after Callaway had learned of the imminence of the election in the representation
case and only 14 days after McKinnon's testimony in the previous complaint case
as to Hunt's staunch adherence to the Union. According to Williams' statement
to Hunt at the time, Hunt was discharged because of his failure to deliver an
urgent shipment of a dragline bucket to Army authorities at Greenville, Texas,
on a regular trip from Houston, which Hunt, according to the record, had made
on September 20th, and 21st s
Sometime on September 20th, an Army officer at Greenville had asked Ramond
Feezel, the respondent's Dallas dock foreman, over the telephone to get the
dragline bucket, which was in Houston, and to transport it either directly
to Greenville or, otherwise, to Dallas or Tyler, where an Army truck would
pick it up. The order was expressly conditioned upon delivery in Greenville by
10 o'clock the following morning Feezel promised delivery in Greenville by that
time and had the respondent's Dallas agent instruct the Houston agent, Harold
Ellis, to pick up the bucket and have it delivered at Greenville the following
morning on Hunt's truck which was leaving Houston that night 9
Greenville is not on Hunt's route but is about 45 miles northwest of Mineola,19
the normal "breaking point" for Greenville freight on his route, and about 55
miles northeast of Dallas. Dallas is 80 or 85 miles almost due west of Mineola,
with 4 of the respondent's regular stations on Hunt's route between them In
order to carry the bucket to Greenville, rather than to unload it at Mineola for
transfer to a truck of the respondent regularly running between Mineola and
Gi ecnville, Hunt would thus have had to deviate 45 miles from his route and, by
returning to Terrell, the nearest point on his route, would have omitted 3 of his
regular stops In this connection, it should be noted that the respondent's
drivers had instructions to obey orders given by its various station agents as to
the deposit and carriage of freight, and to deviate from their prescribed routes
only on specific orders from the agents or from the respondent's superintendent
at Dallas.
On the evening of September 20th, the dragline bucket was placed on Hunt's
truck at Houston under a bill of lading marked "Rush." According to Hunt,
there was also a notation thereon requiring delivery at Greenville by the follow-
ing noon. Hunt did not see the Houston agent, Harold Ellis, that night but
N Hunt at first testified that this trip was completed at Dallas on September 26, the day
of his discharge, but then, in reconstructing the various incidents bearing upon his dis-
charge, stated that he had made one round trip between the trip in question and his dis-
charge Although this would fix Friday and Saturday, September 22d and 23d, as the
time of his trip with the dragline bucket, the bill of lading showed that the bucket was
shipped from Houston on September 20th and that, as stated in the text, it was carried by
Hunt on Wednesday night and Thursday, September 20th and 21st
9 These findings concerning the arrangements made for the shipment are based solely
upon the testimony of Feezel. Neither the Dallas nor Houston agents nor any of the
Armv officials was called as a witness
11 Hunt testified that the distance between Mineola and Greenville is about 56 miles,
Evans, the Mineola agent, testified that it is about 25 miles Rand McNally's "World
Atlas" (1932 , at pp 62-63) shows it to be about 45 miles.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked the dock foreman, Jack Ellis, what he was to do with the bucket at
Mineola. The dock foreman replied, "I guess you will have to take it direct to
Greenville."
At his regular stop at Tyler, before reaching Mineola, Hunt found a shipment
of 24 boxes of Army clothing, weighing in all about 2,500 pounds, which had been
consigned from Jacksonville, Texas, to an Army camp at Fort Worth, Texas, via
Dallas, and had been dropped at the Tyler station the preceding day by another
driver for the respondent in the unfulfilled expectation that a truck leased by
the respondent would carry it into Dallas the same day. According to Hunt's
uncontradicted testimony, the night man on duty at Tyler expressed concern
at the delay and insisted that the clothing shipment be loaded on Hunt's truck
behind the bucket and carried into Dallas.
Hunt testified that when he arrived at Mineola, Evans, the agent there, refused
to permit the unloading of the bucket on the ground or on the dock, which he
said would break under the load" and instructed Hunt to carry it on to Dallas
and to inform the respondent that he had been told by Evans to do so. On the
other hand, Evans testified that Hunt had said there was "too much [of] a load
to unload" ; that Evans had told Hunt either to unload the bucket there or to
carry it directly to Greenville ; and that Hunt had agreed to follow the latter
course. But Evans also testified that he had not seen the bill of lading and that
he did not know that it was a rush shipment which, in his opinion, would have
required Hunt's deviation from his route. Evans further testified on cross-
examination that he had not been consulted about this incident until the morning
he appeared as a witness a year later and that he could not recall exactly what
Bunt had said in answer to his instructions. Under the circumstances, it appears
that the recollection of Hunt concerning these events and this conversation,
which were of great importance to him because they related to his discharge, is
more likely to be accurate than the recollection of Evans concerning the same
events and conversation. The undersigned therefore credits the testimony of
Hunt and finds that Evans refused to permit the unloading of the bucket at
Mineola and directed Hunt to take it on to Dallas.
In any event, Hunt brought the shipment on to Dallas at about 2:00 or 2:30
o'clock that afternoon. On the same afternoon, Dock Foreman Feezel asked him
why he had not made the delivery to Greenville and Hunt replied that the trip
to Greenville would have required his leaving the rest of his route and unloading
the already delayed shipment of Army clothing at Mineola, and also that the
Mineola agent had told him to proceed to Dallas and not to Greenville."
Five days later, on Tuesday, September 26th, after learning of the impending
election in the representation case, General Manager Callaway left Dallas on a
trip which took him to Austin and San Antonio the same day. Before leaving,
either on the same or preceding day, he left instructions with Assistant Manager
Williams to discharge Cannily and Clevinger because of their allegedly unsatis-
factory services. Callaway testified that, while he was in Austin or San Antonio
on the first night of this trip, Harold Ellis, the respondent's Houston agent,
reached him on the telephone and informed him that Hunt, disregarding instruc-
tions, had not departed from his route to make the promised morning delivery
of the dragline bucket at Greenville but had carried it to Dallas, and that "the
government had been calling [Agent Ellis] all day, and wanted to know where
the shipment was." About fifteen minutes later, without attempting to learn
"The bucket weighed 2,200 pounds.
2This finding is based upon Hunt's uncontradicted testimony. Feezel, although called
as a witness , did not testify on this point.
ENGLISH FREIGHT COMPANY 651
anything further about the circumstances of the case then or later,' Callaway
telephoned Williams to discharge Hunt when he reported for work.
Although Callaway testified that Hunt's failure to deliver the dragline bucket
at Greenville was the immediate reason for his discharge, he also asserted that
reports of several other incidents during the preceding few months had con-
tributed to his decision that Hunt, originally a "very satisfactory" employee,
had become uncooperative and unsatisfactory, and should, therefore, be discharged.
On the basis of two of these earlier incidents, Callaway issued a written rep-
rimand to Hunt in a letter dated Afigust 15, 1944. One of the charges made
therein was that Hunt had carried 10,000 pounds of Greenville freight to Dallas
instead of dropping it at Mineola for transshipment to Greenville. Hunt sub-
sequently explained to Callaway that there was no space for this particular
shipment on the Mineola dock. Hunt also testified, without contradiction,
that since the shipment consisted of oil and could not be left on the ground, he
brought it into Dallas, as his partner on the opposite run had done on other
occasions.
The other charge made by Callaway in his written reprimand of Hunt was
that Hunt had recently refused to comply with the request of Agent Wallace at
Terrell to make a spot delivery of freight to one of the respondent's important
customers in that town and had told Wallace that he "would bring the shipment
on into Dallas" instead. In a conversation with Callaway shortly thereafter,
however, Hunt denied both elements of this accusation, stating, as he did in his
testimony, that he had expressed his willingness to make the delivery requested by
Wallace but that Wallace had then told him to unload at the station's dock.
Furthermore, Wallace testified that his son requested Hunt to make the delivery
and that Agent Wallace himself, who was in the office, being unable to hear Hunt's
reply but seeing Hunt slam the truck door as if he were "mad," then told Hunt to
leave the shipment at the dock. Finally, contrary to Callaway's letter to Hunt,
both Callaway and Wallace testified, in substance, that Wallace's report to
Callaway was not to the effect that Hunt had refused to make the delivery or
that Hunt had expressed an intention to carry the shipment to Dallas, but merely
that his attitude was one of unwillingness, or to use Wallace's words, that he
was "mad" when he received Wallace's instructions.
Callaway testified as to several other reports concerning Hunt's conduct prior
to the dragline bucket incident. According to Callaway, Hunt, when confronted
with one of these reports, had admitted "kicking" a shipment of wire off his truck
onto the ground at the Palestine station, explaining that there was no room for
it on the dock. The remaining reports, according to Callaway and Agent Wallace,
involved "several cases" in which Hunt had passed up freight at Terrell in early
August, 1944. Wallace had also reported that Garrett, the driver making the
same run opposite to Hunt, had passed freight at Terrell but, according to Calla-
way, a check of the trucks at Dallas had showed that Garrett's truck but not
Hunt's truck had been fully loaded. When asked for an explanation of these
complaints against him, Hunt told Callaway that he had passed Terrell freight
only when late on his run or when the freight was too much to put on his truck.
According to Hunt, on "the very few occasions" he had passed freight, his explana-
tions had been accepted without comment. In any event, there is no evidence
that he had passed freight after the beginning of August, 1944.
" Callaway never spoke to Hunt about the case nor, apparently, did he learn from Feezel
the explanation which Hunt had given to Feezel . Nor was Evans consulted until the
morning of the hearing in preparation for his appearance as a witness.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusion
As the Board found in the previous complaint case, and the undersigned ac-
cordingly finds in the present case, the respondent through Superintendent
Cheatham actively opposed the unionization of its employees in June and July
1944 by soliciting union membership withdrawals. At the hearing in that case,
Hunt was revealed as having been particularly obdurate in resisting the parallel
activity of McKinnon. Notwithstanding this clear and formidable opposition
of the respondent to unionization, its knowledge of Hunt's staunch unionism,
and the fact that Hunt, together with two of the Board's witnesses were dis-
charged 15 days after the previous complaint hearing and on the eve of a Board
election, the respondent contends that Hunt's discharge was based not upon
his union membership but on the fact that his services had recently been highly
unsatisfactory. With this contention, the undersigned does not agree.
During the period embracing the conduct of Hunt which the respondent held
up to criticism at the hearing, the respondent and its drivers were admittedly
operating under exceedingly difficult circumstances due to an unprecedented vol-
ume of traffic, the urgency of the shippers' requirements, its inability to keep
its trucks in proper condition, and the scarcity of drivers generally. Com-
plaints concerning the respondent's drivers were by no means directed only
against Hunt, and those which involved Hunt were made after Callaway, ac-
cording to his own testimony, had learned of the Union's claim that it represented
practically all the respondent's drivers and after he also knew "pretty well" who
were members of the Union Notwithstanding this background, the respondent
contends that Callaway became convinced, even before the dragline bucket inci-
dent, that Hunt, previously a "very satisfactory" driver, should be discharged
because he had "kicked" a wire shipment onto the ground instead of loading it
onto a station dock ; because, a month and a half prior to his discharge, he had
passed freight several times at Terrell although it does not appear that he had
done so thereafter ; because, at about the same time, in the exercise of his judg-
ment, he had not deposited a large shipment of oil on the ground at a transfer
point but had brought it on to Dallas as had another driver under the same cir-
cumstances; and because, according to the report of one of the agents and con-
trary to his own denial, he had merely appeared to be unwilling to make a spot
delivery at the request of the agent. The lengths to which the respondent was
willing to go to justify Hunt's discharge on the basis of such incidents is illus-
trated by Callaway's charging Hunt, in the written reprimand, with refusing to
make the spot delivery and stating that he would carry it into Dallas, although
both Wallace and Callaway admitted at the hearing that the former's report upon
which the reprimand was based, contained no such charge. Under these circum-
stances, the undersigned finds that the respondent, through Callaway, was care-
fully laying what it hoped would be a plausible justifiable basis for discharging
Hunt, but which, in fact, clearly demonstrates its desire to discharge him, not
because of the unsatisfactory nature of his services, but actually because of his
strong adherence to the Union.
Callaway's reliance upon the dragline bucket incident as the immediate reason
for Hunt's discharge is apparently cut from the same cloth. Although Calla-
way asserted in his testimon} that the drivers operated under instructions
requiring them to obey the orders of the station agents, it is clear that when-
ever inconsistent orders might be given to a driver by different agents in the
course of a single trip, the driver would necessarily be expected to exercise his
judgment and discretion. That was exactly what Hunt did on the trip when
ENGLISH FREIGHT COMPANY 653
he carried the dragline bucket Starting off with the bucket under a "rush"
bill of lading and with the Houston dock foreman's offhand statement that he
"supposed" Hunt would halve to deviate from his regular course to make the
delivery, Hunt was first explicitly informed by the night man at Tyler that
the shipment of Army clothing was late and should be taken directly to Dallas.
Then, at Mineola, where he attempted to leave the bucket for transshipment to
Gieenville, Agent Evans told him to take the bucket to Dallas and, in effect, that
Evans would be responsible That Hunt was reasonable in relying upon and
following these latter instructions seems clear since, not only was he thereby
enabled to expedite the already delayed carriage of the Army clothing toward
Foit Worth, but the dragline bucket could be carried in the respondent's truck
which plied between Dallas and Greenville. In view of the nature of the respond-
ent's operations under the harrying circumstances of the times, the possibility
of some such explanation for Hunt's conduct must have occurred to Callaway.
Yet he summarily ordered Hunt's discharge not only without speaking to Hunt
to learn what might have happened en route but also without inquiring of Evans
or any of the other agents at Dallas or along Hunt's route.
Furthermore, Callaway in his testimony sought to make it appear that, in
telephoning Williams to discharge Hunt on September 26, he was acting under
the worry and pressure of a complaint from the Army authorities that the drag-
line bucket had not yet been delivered. If this were in fact the substance of
Houston Agent Ellis' report to Callaway on September 26 and if Callaway had
become as genuinely concerned about the incident as he testified he was, he
most certainly would not simply have ordered Hunt's discharge but would have
asked Ellis where the bucket was. Pursuit of such an inquiry would have dis-
closed that the bucket had been shipped from Houston on September 20, that it
had arrived in Dallas on September 21, which was 5 days before Ellis' report to
Callaway, and that, if it was still undelivered, the greater and obviously more
serious portion of the delay was due not to Hunt's fault but to that of other
employees of the respondent at the Dallas terminal. Callaway's omission to
make this natural inquiry as to the whereabouts of the bucket as well as any
inquiry as to why Hunt had not made the delivery at Greenville, indicates
clearly that Callaway's concern was not, as he would have the Board believe,
the satisfaction of an important customer and the maintenance of efficient
service, but rather the discharge of Hunt, regardless of Hunt's fault.
Under the circumstances, the only credible explanation shown by the record
for Hunt's discharge, particularly in view of the respondent's strong opposition
to the unionization of its employees, was the fact that Callaway knew, at least
from McKinnon's testimony at the hearing in the previous complaint case, that
Hunt was an enthusiastic, unshakable supporter of the Union whose discharge
not only would eliminate his certain vote for the Union in the coming election
but would also be likely to influence other employees to vote against the Union.
Counsel for the respondent argued at the hearing that, had the respondent
wanted to discharge Hunt along with Canady and Clevinger because of their
known union affiliation, it would not have waited until the very eve of the
election when it might circumstantially appear that the motive was discrimina-
tory, and, therefore, that the very time of their dischai ges indicates that they
were based upon the proper grounds given by Callaway in his testimony. Aside
from the peculiarity of this argument that the very transparency of a violation
of law disproves the existence of improper motive, and aside from the fact that
the argument ignores the implausibility of Callaway's testimony concerning the
grounds ascribed by him for Hunt's discharge, it is to be noted that the respond-
ent discharged Hunt, Canady, and Clevinger only when it appeared that its
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motion to have the Board reconsider its Decision and Direction of Election was
unsuccessful and that the election would be held.
Upon the testimony and the foregoing considerations the undersigned finds
that the respondent discharged C. G Hunt because of his union membership and
activity , thereby discriminating against him in regard to his hire and tenure of
employment and discouraging membership in a labor organization in violation
of Section 8 (1) and ( 3) of the Act.
C. The discharges of M. J. Canady and C. C. Clevinger
Both M. J. Canady and C. C. Clevinger were employed by the respondent as
truck drivers for approximately a year before their discharges on September 27,
1944; "' both joined the Union on or about June 18, 1944; and both testified as
witnesses for the Board at the hearing in the previous complaint case on Sep-
tember 12 , 1944. At the time of their discharges and for more than 6 months
prior thereto , they were making regular runs for the respondent between Dallas
and Houston by different routes.
On September 25 or 26, 1944, General Manager Callaway certified Canady and
Clevinger to the Board's Regional Director as truck drivers then employed by
the respondent in the unit wherein the Board was about to conduct the election
in the representation proceeding 1s Immediately thereafter , on either September
25 or 26, Callaway instructed Assistant General Manager Williams to discharge
these two drivers when they came into Dallas again 16 According to Callaway,
his decision was based upon current as well as numerous previous complaints
from all the station agents on Canady 's and Clevinger 's routes, to the effect
that they had been generally mishandling freight and "passing up freight",
1. e. failing to pick it up at the stations , and that Clevinger had also been from
two to four hours behind schedule and had been sleeping on the road. At
any rate, when Canady and Clevinger were in Dallas between trips on September
27, Williams notified them of their discharges pursuant to Callaway 's instruc-
tions because of "passing up freight", without citing any specific instances,
however, or giving them an opportunity to explain.
Callaway testified in general terms that he had continually received oral and
written complaints from the respondent 's agents concerning Canady's mishan-
dling and passing up freight from at least as early as March 4, 1944, when he
wrote a memorandum to both Canady and Coyle, the opposite driver on the same
route, about a complaint made by the agent at Huntsville . Callaway admitted
that during this period of heavy traffic , similar complaints were made by agents
against other drivers but not with the same frequency as against Canady and
Clevinger . According to Callaway when the agents ' complaints were called to
Canady's attention , Canady always promised to do better , in several instances
admitted the truth of the complaints , and on some occasions , such as the case
in which Callaway wrote the memorandum to Canady and Coyle , contended that
the fault was not his but that of Coyle. Although Callaway 's memorandum to
Canady and Coyle and a written complaint made by Coyle against Canady in
July were offered and received in evidence , none of the alleged written com-
plaints of the agents were produced nor was their unavailability asserted or
14 Clevinger was hired in August 1943 , and Canady , "some time in 1943 "
16 Although the telegram to the Regional Director , in which Callaway listed Clevinger and
Canady as employees , was sent on September 26, Callaway testified that he may have dic-
tated it the previous day in answer to the Regional Director's request of September 25
"According to Clevmger's testimony , Williams, in discharging him, referred to instruc-
tions received from Callaway in San Antonio Williams was not called as a witness, but
Callaway testified that his instructions for Clevinger 's and Canadv ' s discharges were given
to Williams before he left Dallas on the San Antonio trip on September 26
ENGLISH FREIGHT COMPANY 655
explained . Aside from the incidents in March, Callaway testified as to only one
specific instance in which Canady was reportedly remiss in the performance
of his duties . As to that not even an approximate date was given and it appeared,
moreover , that Coyle , who resigned in August , was involved together with Canady.
Furthermore , although Callaway testified that Canady 's repeated mishandling
and passing of freight , after warnings and reprimands , had led to the discharge,
he gave no definite testimony concerning any specific instance of such repetition
shortly prior to his decision to dismiss Canady. Canady , on the other hand,
testified that his loads were usually heavy ; that, while he often passed freight,
he did so only when his truck was completely loaded and, even in those cases,
stopped to pick up company mail and to advise the station agent, if he were
there, of his inability to pick up freight ; that when the complaints were referred
to him, he explained to Trucking Superintendent Cheatham , the reason for his
failure to pick up the freight ; and that no such specific complaints were brought
to his attention at any time shortly prior to his discharge nor by Williams at
the time of his discharge.
As in the case of Canady, Callaway's testimony concerning complaints made
by the respondent's agents against Clevinger was general for the most part and
disclosed no specific, reported instances of Clevinger's inattention to duty which
had come to his notice shortly before Clevinger's discharge. On the other hand,
when Callaway was asked to give a single instance in which he investigated a
complaint against Clevenger, he cited complaints made 6 months before Clevinger's
discharge by the Waco agent to the effect that Clevinger had passed freight and
by the Navasota agent to the effect that Clevinger had not only passed freight
but had delivered shipments to the wrong station In addition, Callaway testified
that Clevinger was habitually late. Feezel, the Dallas dock foreman testified
that while all the drivers were late at times, none were late as often as Clevinger.
Clevinger testified that there was considerable congestion and "mix-up" in the
respondent's handling of freight in August and September, 1944, due to war-time
conditions ; that be passed up freight at stations along his route only when there
was no space left on his truck; that on many of these occasions, the station
agents or their employees complained directly to him, as they did to every one
of the respondent's drivers, about their inability to move their freight but none
charged him with passing up freight when he had space; that the night man
at the Waco station had thus complained to him every night, after the discon-
tinuance of one of the respondent's shorter lines had so overloaded Clevinger's
truck that he generally had no room for freight when he reached Waco; that,
within a week or two prior to Clevinger's discharge, the agent at Brenham com-
plained about his not stopping there, but, as Clevinger then explained to Superin-
tendent Cheatham and Agent Ellis at Houston to their apparent satisfaction,
he had merely been following Cheatham's standing instructions not to call at
Brenham, which was 44 miles off his route unless he received advice at his
Navasota stop that Brenham had at least 2,009 pounds of freight for him to
pick up; that, aside from the Brenham complaint, he did not know whether any
of the agents' complaints had been made to the respondent's officials ; but that
on nearly every one of his trips, as a matter of routine and not with reference
to any complaints, he and his supervisors discussed, and he explained to them,
the necessity for his leaving freight at various way stations.'
17 In the course of his testimony , Clevinger stated that on his last run from Houston on
September 26 and 27 , he passed up freight at Navasota and Hearne . He explained that he
was instructed by the dock foreman at Houston to make a run with a full load from Hous-
ton to Bryan , which is beyond Navasota , and that, receiving another full load at Bryan
for Waco, which is beyond Hearne, he bad no room to pick up freight at Hearne R B
Corn, who succeeded Callaway as General Manager on January 1, 1945, and who had no
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusion
From the foregoing, it appears that Canady and Clevinger were discharged
against the same general background as was Hunt, and under similar, immediate
circumstances, i. e., (1) the hostility of the respondent to the unionization of
its employees, including Canady, Clevenger, and Hunt; (2) the realization by
Callaway that the Board was about to hold the election of representatives in spite
of the respondent's opposition; and (3) the summary discharge of three of the
known union employees in the space of 2 days and on the eve of the election
without giving them an opportunity to explain or defend themselves against
the charges upon which their dismissals were ostensibly based. In the back-
ground of Canady's and Clevinger's discharges, there also looms the fact that
only 15 days before their discharges, they had given material testimony against
the respondent in the previous complaint case.
As against these strong indications that Canady's and Clevinger's discharges
were motivated by a desire on the part of the respondent to rid itself of employees
who had testified against it and to eliminate two almost certain votes for the
Union in the election, Callaway was not convincing in his testimony that the
discharges were in fact based upon reports from the station agents to the effect
that both drivers had been mishandling and passing up freight. None of these
agents nor any other employees, who might have had personal knowledge of the
drivers' actual conduct along their routes, testified, and the undersigned credits
the uncontradicted testimony of both Cannily and Clevinger that they passed
freight only when their trucks were loaded. Nor does the record support the
respondent's contention that the discharges were based upon Callaway's necessary
and reasonable reliance upon the agents' reports, whether they were true or not.
While it seems clear from the testimony that complaints-and perhaps numerous
complaints-were in fact made by the agents against Canady's and Clevinger's
not picking up freight, the undersigned finds, as Canady and Clevinger credibly
testified, that such complaints were made against all the drivers, were a result
of the prevalent, chaotic conditions in the motor transportation business, and,
when called to Canady's and Clevinger's attention, were satisfactorily explained.
Moreover, as already noted, every specific instance of such a complaint cited by
Callaway was at least 6 months before the discharges, and only one later complaint
against Clevinger (which Clevinger satisfactorily explained) was disclosed
by Clevinger in his testimony. Thus it does not appear that Callaway could even
recall a single instance of the "repetitions" by Canady and Clevinger of their
failure to perform their duties which, according to his general assertion, had led
him to discharge them.
Similarly unconvincing was Callaway's general testimony that Clevinger's
discharge was in part based upon Clevinger's being late upon his run and sleeping
on the road. No testimony whatsoever was given to support the charge of
sleeping on the job, except his own admission that on one occasion he took a nap.
personal knowledge of any of the facts iniolved in the present proceeding, testified that
the respondent's records disclosed that only 1,333 pounds of freight were shipped from
Houston to Bryan on Clevinger's truck on the night of September 26 and that the capacity
of every one of the respondent's trucks was at least 18,000 pounds. Since Callaway had
already ordered Clevinger ' s discharge , it is clear that Clevinger ' s conduct on his last trip
was not a factor in determining his discharge. Nor does the undersigned perceive any
reason on the basis of Corn's testimony to doubt the credibility of Clevinger's testimony
generally For not only did none of the agents testify in support of Corn, but none of the
respondent ' s records were themselves produced and it does not appear whether the informa-
tion proffered by Corn embraced any shipments other than those originating at Houston
and ultimately consigned to Bryan.
ENGLISH FREIGHT COMPANY 657
As already noted Feezel, dock foreman at Dallas however, testified that Clevinger
was habitually late. But when Clevinger was discharged he was informed
merely that the reason was his passing up freight, thereby clearly indicating
that the other charges against him were afterthoughts which, whether true or
not, played no role in the decision to dismiss him.
Upon the foregoing considerations, the undersigned finds that the respondent
discharged Canady and Clevinger, not because of their failure to perform their
duties properly nor because of any reports to that effect but because of their
union membership and activity and because they gave testimony under the Act,
thereby discriminating in regard to their hire and tenure of employment and
discouraging membership in a labor organization in violation of Section 8 (1),
(3), and (4) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
(_onnection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic and commerce
among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor prac-
tices within the meaning of Section 8 (1), (3) and (4) of the Act, the undersigned
will recommend that it cease and desist therefrom and take certain affirmative
-in order to effectuate the policies of the Actaction
The unfair labor practices found by the undersigned were obviously a con-
tinuation and extension of the unfair labor practices found by the Board in the
previous complaint proceeding. The respondent has thus sought to defeat self-
organization among its employees by a persistent course of unlawful conduct,
including discrimination, which "goes to the very heart of the Act," " and has
evidenced an unmistakable disposition to resort to whatever means may be neces-
sary and available even though it be clearly improper. Because of the respond-
ent's consistently unlawful conduct and its persistent adherence to its underlying
purpose, the undersigned is convinced that the unfair labor practices found are
persuasively related to the other unfair labor practices proscribed by the Act and
that danger of their commission in the future is to be anticipated from the
respondent's conduct in the past.19 The preventive purposes of the Act will be
thwarted unless the board's order is coextensive with the threat In order,
therefore, to make effective the interdependent guarantees of Section 7, to prevent
a recurrence of unfair labor practices, and thereby to minimize and prevent
industrial strife which burdens and obstructs commerce and thus to effectuate
the policies of the Act, the undersigned will recommend that the respondent cease
and desist from in any manner infringing upon the rights guaranteed in Section 7
of the Act.
The undersigned has found that, by discharging C. G Hunt, M. J. Canady, and
C C Clevinger, the respondent discriminated in regard to their hire and tenure
of employment, thereby discouraging membership in the Union. Since these dis-
charges, the respondent has not offered these men reinstatement. However, on
approximately July 15, 1945, each of the three discharged employees informed
18 N L R B. v Entwistle Manufacturing Go, 120 F. ( 2d) 532 , 536 (C. C A 4) See
also N L R B. v. Automotive Maintenance Machinery
(C C A 7).
Co, 116 F. (2d) 350, 353
In See N L. R. B v. Express Publishing Company , 312 U S. 426
69214 5-46-vol. 67--43
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an attorney for the Board, who was handling the case, that he did not care to
return to work for the respondent. But, at the hearing, each of them then stated
that they wanted time to consider the matter. Thus, it may fairly be assumed,
and the undersigned finds that they would not have accepted reinstatement if, the
respondent had made such an offer between July 15, 1945 and September 17, 1945,
the date the hearing began. Full effectuation of the policies of the Act normally
requires an employer to offer a discriminatorily discharged employee reinstate-
ment to his former or a substantially equivalent position and also to make the
employee whole for any loss of earnings which may have resulted from the dis-
crimination . Although this general remedial principle rests in part upon the
theory that the employer should right the wrong done by him and is, to some extent,
limited thereby, it also is founded upon the salutary effect of an offer of rein-
statement with back pay as an assurance of the employer's future good faith not
only to the discharged employee but to his fellow employees as well. Thus, on
the one hand the back pay feature of the Board's normal remedy is necessarily
confined as a matter of fairness to the loss of earnings actually incurred as a
result of the employer's disc rimination,20 and therefore excludes any period during
which an offer of reinstatement either could not have been accepted or would
have been rejected.' On the other hand, the clear desirability of an employer's
demonstration of good faith furnishes ample reason for requiring him to make an
offer of reinstatement even though during a particular period it would be rejected.
While the three discharged employees in the present case would not have accepted
reinstatement if it had been offered between July 15, 1945 and September 17, 1945,
and it cannot be said that they suffered any loss of earnings for that period as a
result of the respondent's discrimination, to excuse the respondent from offering
them reinstatement or from responsibility for any loss of earnings suffered by
--^ them after September 17, 1045, as well as before July 15, 1945, as a result of the
respondent's discrimination and failure to offer them reinstatement, would con-
stitute a failure to effectuate the policies of the Act to the full extent intended by
the Congress. Moreover, for the reasons expressed by the Board in prior cases,22
the undersigned comes to this conclusion even though it appears from the record
that the three employees in question may have secured substantially equivalent
employment elsewhere. The undersigned will, therefore, recommend that the
respondent offer C. G. Hunt, M. J. Canady, and C. C. Clevinger immediate and
full reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, and that the respondent
also make them whole for any loss of pay they may have suffered by reason of
the discrimination against them, by payment to each of a sum of money equal
to that which he normally would have earned as wages from the date of his
discriminatory discharge to July 15, 1945 and from September 17, 1945 to the
date of the offer of reinstatement, less his net earnings 23 during those periods.
20 See e . g., Phelps Dodge Corporation v. N. L. R. B. , 313 U. S . 177; Republic Steel Cor-
poration v. N. L. R. B., 311 U. S. 7.
E1 See e. g ., Matter of Fanny Farmer Candy Shops, Inc., 10 N. L R . B. 288, 295-296,
308; Matter of Vetd Mines , Inc., 36 N . L. R. B. 288 , 299; Matter of Wells-Lamont-Smith
Corp., 41 N. L. R. B 1474; Matter of J. D. Brock, 42 N. L. R. B. 457; Matter of Niles Fire
Brick Company , 30 N. L. It . B. 426; Matter of Midwest Steel Corp ., 32 N. L. It. B. 195.
22 See Matter of Ford Motor Company, 31 N. L. R. B . 994, 1099-1100 ; Matter of Phelps
Dodge Corporation, 35 N L. It. B. 418, 420-421.
23 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 else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company , 8 N. L. It. B . 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.
ENGLISH FREIGHT COMPANY 659
Upon the basis of the above findings of fact, and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Local 745, 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
C. G. Hunt, M. J Canady, and C. C. Clevinger and thereby discouraging member-
ship in International Brotherhood of Teamsters, Chauffeurs. Warehousemen &
Helpers, Local 745, AFL, the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (1) and (3) of the Act.
3. By discharging M. J Canady and C C. Clevinger because they gave
testimony under the Act, the respondent has engaged in unfair labor practices
within the, meaning of Section 8 (1) and (4) 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.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, English Freight Company, its officers,
agents, successors, and assigns shall:
1 Cease and desist from :
(a) Discouraging membership in International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, Local 745, AFL, or in any
other labor organization of its employees, by discriminatorily discharging
employees, or by discriminating in any other manner in regard to their hire or
tenure of employment or any term or condition of employment;
(b) Discharging or otherwise discriminating against employees because they
have filed charges or given testimony under the National Labor Relations Act;
(c) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Local 745, AFL, or any other labor organi-
zation, to bargain collectively through representatives of their own choosing, and
to engage in concerted activities, for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act:
(a) Offer to C G. Hunt, M J. Canady and C. C. Clevenger immediate and
full reinstatement to their former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges, and make them whole for
any loss of pay they may have suffered by reason of the discrimination against
i hem, by payment to each of them of a sum of money equal to that which he
normally would have earned as wages from the date of his discriminatory dis-
charge to July 15, 1945 and from September 17, 1945, to the date of the offer of
reinstatement, less his net earnings 24 during these periods;
(b) Post in all of the places of business wherein its employees are engaged,
copies of the notice attached hereto, marked "Appendix A." Copies of said notice,
to be furnished by the Regional Director for the Sixteenth Region, shall, after
24 See footnote 23, supra.
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being duly signed by the respondent , be posted by him immediately upon receipt
thereof, and maintained by him 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 the respondent to insure that said
notices are not altered , defaced, or covered by any other material ;
(c) Notify the Regional Director for the Sixteenth Region in writing, within
ten (10 ) days from the date of the receipt of this Intermediate Report, what steps
the respondent has taken to comply with the foregoing recommendations.
It is further recommended that unless on or before ten (10 ) days from the date
of the receipt of this Intermediate Report, the respondent has notified said Re-
gional Director in writing that it will comply with the foregoing recommenda-
tions the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended , effective November 27,
1945, any party or counsel for the Board may within fifteen ( 15) days from the
date of the entry of the order transferring the case to the Board , pursuant to
Section 32 of Article II of said Rules and Regulations , file with the Board,
Rochambeau Building , Washington 25, D. C ., an original and four copies of a
statement in writing setting forth such exceptions to the Intermediate Report or
to any other part of the record or proceeding ( including rulings upon all mo-
tions or objections ) as he relies upon, together with the original and four copies
of a brief in support thereof. Immediately upon the filing of such statement of
exceptions and/or brief , the party or counsel for the Board filing the same shall
serve a copy thereof upon each of the parties and shall file a copy with the Re-
gional Director . As further provided in said Section 33, should any party desire
permission to argue orally before the Board, request therefore must be made in
writing to the Board within ten ( 10) days from the date of the order transfer-
ring the case to the Board.
WILLIAM F. SCHABNIKOw,
Trial Examiner.
Dated January 9, 1946.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner 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 in any manner interfere with, restrain , or coerce our employees
in the exercise of their right to self-organization , to form labor organizations,
to join or assist International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America, Local 745, A. F. of L , or any other labor
organization , to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
We will offer to the employees named below immediate and full rein-
statement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay suffered as a result of the dis-
crimination.
C. G. Hunt, M. J Canady, and C. C. Clevinger
ENGLISH FREIGHT COMPANY 661
We will not discharge or otherwise discriminate against any employee
because he has filed a charge or has given testimony under the National
Labor Relations Act.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard
to 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.
ENGLISH FRF,ZOHT COMPANY
Dated------------------------ By -------------------------------------
(Representative) (Title)
Norf.-Any of the above-named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application in
accordance with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered , defaced, or covered by any other material.