Ford Brothers

National Labor Relations Board - Board Decisions

Mar 31, 1947

73 N.L.R.B. 49 (N.L.R.B. 1947)

In the Matter of WILBUR FORD, CHESTER FORD, AND JOHN FORD, CO-
PARTNERS , D/B/A FORD BROTHERS and INTERNATIONAL BROTHERHOOD
OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN R HELPERS OF AMER-
ICA, A. F. L., LOCAL 143
Case No. 9-C-2167.-Decided March 31,1947
Messrs. Martin Sacks and Louis S. Penfield, for the Board.
Mr. Arthur W. Wiles, of Columbus, Ohio, for the respondents.
Mr. Orville Artis, of Portsmouth , Ohio, for the Union.
Mr. William C. Baisinger, Jr., of counsel to the Board.
DECISION
AND
ORDER
On September 4, 1946, Trial Examiner Charles E. Persons issued
his Intermediate Report in the above-entitled proceeding, finding that
the respondents , Wilbur Ford, Chester Ford, and John Ford, co-
partners, d/b,/a Ford Brothers, had engaged in and were engaging
in certain unfair labor practices and recommending that they cease
and desist therefrom and take certain affirmative action , as set forth
in the copy of the Intermediate Report attached hereto. Thereafter,
the respondents filed exceptions to the Intermediate Report and a
supporting brief. On February 18, 1947, the Board heard oral argu-
ment at Washington , D. C. The respondents and the Union appeared
and participated in the argument.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the respondents ' exceptions and brief , the arguments
advanced at oral argument, and the entire record in the case, and
hereby adopts the Trial Examiner's findings, conclusions, and recom-
mendations , with the additions noted below :
The Trial Examiner found, and we agree, that Edward Pancake
was discharged because of his union activity , in violation of Section
8 (3) of the Act . In excepting to this finding , the respondents argue
that Pancake's testimony at the hearing and his statements to other
employees prior thereto, that he was discharged because he took sev-
eral gallons of gasoline from one of the respondents ' transport trucks,
conclusively establish that he was discharged for that reason, as the
73 N. L. R. B., No. 10. 49
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondents contend, and not for his union activity. We do not agree
with the respondents. In our opinion, Pancake was not expressing in
those statements his view as to the real reason for his discharge but
was merely repeating the ostensible reason given him by the respond-
ents at the time of his discharge. This conclusion is indicated by,
among other things, Pancake's further testimony that the adherents
of the Union anticipated that "The first time one of our foots slipped,
there would be somebody fired. . . . I was the first one that walked
into the trap, see," and that, in his opinion, only members of the
Union would have been discharged for draining gasoline from re-
turned transports. In any event, as we indicated in Matter of Jor-
danoff Aviation Corporation,' a discharged employee's state of mind
as to the reason for his discharge is not controlling under circum-
stances which otherwise reasonably lead to a contrary conclusion.
Upon the entire record in the case-including the fact (1)
that Pancake's work performance had been reasonably satisfactory
throughout his approximately 8 years' tenure with the respondents;
(2) that the respondents failed to give due publicity to any rule pro-
hibiting their employees from appropriating small quantities of gaso-
line which remained in the returned transports after completion of
delivery to consignees; (3) that the draining of gasoline from returned
transports by employees of the respondents was a common practice
of long standing, knowingly permitted by the respondents; (4) that,
so far as appears, no driver other than Pancake had been discharged
or otherwise disciplined for engaging in this practice; (5) that Pan-
cake was discharged during the Union's organizational campaign; (6)
that the respondents, as fully set forth in the Intermediate Report,
had openly demonstrated their antipathy toward the Union and the
organizational efforts of their employees; 2 and (7) that the respond-
ents knew of Pancake's union membership and activities, had threat-
ened to take discriminatory action against union members, and had
1 69N L R.13 1189, 1199.
2 we find no merit in the respondents ' contention that the statements found by the Trial
Examiner to constitute violations of Section 8 (1) of the Act fall within the permissible
area of free speech guaranteed by the Constitution . Certainly , Chester Ford ' s suggestion
to employee Virgil Criss that " * * * when this Union deal is to come up, if we'd
have a beer and sandwiches now I think we could overcome a lot of this Union deal" ;
the respondents' offers of individual wage increases to employees Criss and Hinson in an
effort to seduce them from their union allegiance ; the questioning of employees Coyer and
Ratliff as to their union membership by respondents W. H. Ford and John Ford , respec-
tively , the threat of discrimination against union members expressed by Chester Ford to
employee Shelton ; and Chester Ford 's threat to discharge the supposed leader of the Union
expressed to employee Coyer , constituted acts of unlawful interference and coercion per se,
rather than privileged free speech. Nor is there any merit to the respondents ' argument
that the failure of any employee to testify that he was in fact intimidated or coerced by
the anti-union statements and conduct of the respondents militates against the Trial Ex-
aminer's finding that such activities amounted to interference, restraint , or coercion,
within the meaning of Section 8 (1) of the Act. See Matter of Swift and Company, 30
N L. R B . 550, 565, enf ' d 129 F. (2d) 222 ( C. C. A. 8).
FORD BROTHERS 51
singled out Pancake as one of the leading protagonists of the Union,3
we are convinced and find, as did the Trial Examiner, that the alleged
misconduct of Pancake in draining a small quantity of gasoline from
a returned transport was merely a pretext for his discharge and that
the real reason was a desire to discourage membership in the Union
by eliminating one of its active members.
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 respondents, Wilbur Ford, Chester Ford,
and John Ford, co-partners, doing business as Ford Brothers, Coal
Grove, Ohio, and their agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs; Warehousemen and Helpers of America, Lo-
cal 143, affiliated with the American Federation of Labor, or in any
other labor organization of their employees, by discharging or refus-
ing to reinstate any of their employees, or by discriminating in any
other manner in regard to their hire or tenure of employment, or any
term or condition of their employment;
(b) 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 143, affiliated with the American Federation of Labor, or any
other labor organization, to bargain collectively through representa-
tives 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 Board finds will
effectuate the policies of the Act :
(a) Offer Edward Pancake immediate and full reinstatement to
his former or a substantially equivalent position ,4 without prejudice
to his seniority or other rights or privileges;
(b) Make whole Edward Pancake for any loss of pay he may have
8 Thus, "within a month or two" before Pancake 's discharge, the respondent Chester
lord, in a conversation with employee Criss, named Pancake as one of the "five or six men
that's causing this, this union trouble " On another occasion, late in May 1945, the re-
spondent Wilbur Ford singled out Pancake from a group of four employees for the purpose
of discussing the Union. During the ensuing conversation, Pancake told Wilbur Ford,
"* * * us fellows is talking something about we'd like to have a national organization
in here to represent us * * * You know, if we have a national organization repre-
senting us, we feel more secure in our jobs and we have more security."
4In accordance with our consistent interpretation of the term, the expression "former
or substantially equivalent position" is intended to mean "former position wherever pos-
sible, but if such position is no longer in existence , then to a substantially equivalent
position " See Matter of The Chase National Bank of the City of New York, San Juan,
Puerto Rico , Branch, 65 N. L. R. B. 827.
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suffered by reason of the respondents' discrimination against him, by
payment to him of a sum of money equal to the amount which he nor-
mally would have earned as wages during the period from the date
of his discriminatory discharge to the date of the respondents' offer
of reinstatement, less his net earnings during such period ;
(c) Offer to those employees listed in Appendix A, attached to the
Intermediate Report, who went on strike and who have applied for
and have not been offered reinstatement, and also, upon application,
to those who have not previously applied for reinstatement, immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and privi-
leges, in the manner set forth in Section V of the Intermediate Report,
entitled "The Remedy," placing those employees for whom no employ-
ment is presently available upon a preferential list and offering them
employment as it becomes available, in the manner therein set forth;
(d) Make whole the employees specified in paragraph 2 (c), above,
for any loss of pay they have suffered or may suffer by reason of the
respondents' refusal, if any, to reinstate them pursuant to paragraph 2
(c); above, by payment to each of them of a sum of money equal to the
amount that he normally would have earned as wages during the period
from five (5) days after the date on which he applied or shall have
applied for reinstatement to the date of the respondents' offer of rein-
statement; or placement of his name upon a preferential list, less his
net earnings, if any, during said period ;
(e) Post at their plant in Coal Grove, Ohio, copies of the notice
attached to the Intermediate Report, marked "Appendix B." s Copies
of said notice, to be furnished by the Regional Director for the Ninth
Region, shall, after being duly signed by the respondents or their
representative, be posted by the respondents immediately upon receipt
thereof, and maintained by them 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 respondents to insure that said notices are not altered, defaced, or
covered by any other material;
(f) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days from the date of this Order, what steps they have
taken to comply herewith.
CIIA1R1rAN HERZOG took no part in the consideration of the above
Decision and Order.
Said notice, however, shall be, and it herchv is, amended by striking from the first para-
graph thereof the words "The Recommendations of a Trial Examiner " and substituting in
lieu thereof the words "A Decision and Older " In the event this Order is enforced by
decree of a Circuit Court of Appeals, there shall be inserted , before the words "A Decision
and Order ," the words , "A Decree of The United States Circuit Court of Appeals En-
forcing."
FORD BROTHERS
INTERMEDIATE REPORT
Martin Sacks, Esq., and Louis S. Penfield, Esq., for the Board.
Arthur W. Wiles, Esq, of Columbus, Ohio, for the Respondents.
Orville Artis, Business Representative, of Portsmouth, Ohio, for the Union.
STATEMENT OF THE CASE
53
Upon a first amended charge duly filed on May 13, 1946, by International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
A. F. L, Local 143, herein called the Union, the National Labor Relations Board,
herein called the Board, by its Regional Director for the Ninth Region (Cincin-
nati, Ohio), issued its complaint dated June 25, 1946, against Wilbur Ford,
Chester Ford, and John Ford, co-partners, doing business as Ford Brothers, herein
called the Respondents, alleging that the Respondents had engaged in and were
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of
hearing thereon were duly served upon the Respondents and the Union.
With respect to the unfair labor practices the complaint, as amended at the
hearing, alleges in substance: (1) that the Respondents discharged Edward
Pancake on June 4, 1945, and thereafter failed and refused to reinstate him
because of his membership in and activities on behalf of the Union and because
the Respondents wished to discourage membership in the Union, and (2) that
the Respondents from on or about March 1, 1945, to date have urged, persuaded
and warned their employees to refrain from assisting, becoming members of, or
remaining members of the Union ; have threatened their employees with loss of
employment and loss of various privileges if the Union became their bargaining
representative ; have offered financial inducements to their employees condi-
tioned upon their withdrawal from the Union ; have threatened to close their
business if the Union became the bargaining representative ; have questioned their
employees concerning their union activities, union membership and the leader-
ship in the Union's organizational campaign, thereby interfering with, restrain-
ing, and coercing their employees in the exercise of rights guaranteed in Section 7
of the Act and engaging in unfair labor practices within the meaning of Section 8
(1) of the Act. Further, the complaint alleges that 15 named employees 1 on June
4, 1945, ceased work concertedly and went on strike because of these unfair labor
practices of the Respondents.
At the opening of the hearing the Respondents filed their answer in which they
admit the facts alleged in the complaint as to their co-partnership organization
and the nature and extent of their business, and that Pancake was discharged
on June 4, 1945, and thereafter refused employment However, the Respondents
deny the commission of any unfair labor practices and aver that Pancake was
discharged for justifiable, lawful and reasonable causes. Further, the answer
denies that there was a strike or any other dispute whatsoever in the plant and
avers that nothing which there occurred was caused by any unfair labor practices.
Pursuant to notice a hearing was held at Ironton, Ohio, on July 22 through July
26, 1946, before the undersigned, Charles E. Persons, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board and the Respondents were
These employees were.
Cecil Cheek John A. Dheel Carl Nance
O R Colley John Friend Dorsey W. Pelphrey
H B Cook Kenneth G. Hinson William Ratliff
Raymond Coyer Edward Hughes John F. Richardson
Virgil F. Criss Homer Mayse John C. Shelton
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represented by counsel and the Union by one of its officials. Full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues was afforded all parties. Prior to the opening of the hearing the
Respondents submitted motions to the Regional Director, requesting a copy of the
report made in this proceeding by the Board's Field Examiner ; for a complete
bill of particulars; to strike certain parts of the complaint; and to make the
complaint more definite and certain. These motions were referred to the under-
signed for disposition. At the opening of the hearing the Respondents' counsel
renewed these motions and supported them with brief argument. The motions
were denied. It was provided however, with reference to Respondents' motion
for a bill of particulars, that in case they found it desirable to ask for a recess
at the close of the Board's presentation they would be granted a reasonable time
to prepare their defense, and further that the Board would be required to recall
any of its witnesses whom the Respondents desired to subject to further cross-
examination. Such a request was not presented. Respondents further moved
that the rule be applied requiring that witnesses be excluded from the hearing
room until called to testify. This motion was granted. At the close of the
Board's presentation Respondents moved to strike the allegations of the complaint
in their entirety and as to each separate clause, alleging failure of proof. These
motions were denied. The motions were renewed by the Respondents at the
close of the hearing. They were then taken under advisement by the under-
signed and are now disposed of by the findings, conclusions and recommendations
in this Intermediate Report. During the hearing the Board moved to strike
such part of the complaint as alleged that five employees who had engaged in the
strike had been refused reinstatement upon their unconditional application. This
motion was granted without objection. The Board further moved at this time
to amend paragraph 6 of the complaint and specify 15 employees who ceased
work concertedly and went on a strike, allegedly caused by the unfair labor
practices of the Respondents This motion was granted. At the close of the
hearing the Board moved to conform the pleadingg to the proof adduced as to
such non-essential matters as names, spellings and places. This motion was
granted without objection. At the conclusion of the presentation of testimony
the Board and the Respondents argued orally before the undersigned. The parties
were advised that they had the privilege of presenting briefs for the consideration
of the Trial Examiner The Respondents have duly submitted such a brief.
On 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 RESPONDENTS 2
The Respondents, Wilbur Ford, Chester Ford and John Ford, co-partners, doing
business as Ford Brothers' are engaged in contract hauling of gasoline and other
petroleum products in Ohio, West Virginia and Kentucky. They maintain their
office and principal place of business at Coal Grove, Ohio. During the calendar
year 1945 the Respondents transported and delivered gasoline and other petroleum
products having a value in excess of $50,000, of which approximately 25 percent
was transported between various points in Kentucky, West Virginia and Ohio.
The value of their purchases in the same period was in excess of $5,000, of which
more than 25 percent in value came from points outside the State of Ohio.
2 These findings are based on allegations in the complaint admitted by the Respondents
In their answer, on a stipulation between the parties introduced into the record, and on
testimony which is uncontroverted.
FORD BROTHERS 55
The Respondents concede, and the undersigned finds, that they are engaged in
commerce within the meaning of the Act.
H. THE ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, A. F. L., Local 143, is a labor organization which admits to
its membership employees of the Respondents.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondents began operations on August 15 1932, with a single transport
for the handling of petroleum products which they serviced and operated them-
selves. Their operations expanded gradually until the outbreak of war and the
resultant scarcity of railroad tank cars threw additional burdens on truck trans-
portation. By June 1945 they were operating 13 tractors and 17 trailer tanks
and employing 23 full-time drivers and a staff of mechanics. In the develop-
ment of their business there was a division of functions among the brothers. John
became the dispatcher, receiving the orders and assigning the trucks and drivers
to execute them ; Chester was maintenance supervisor, buying and receiving
parts, tires and equipment; while Wilbur was contact man with the shippers,
investigating complaints and assuring the proper performance of contracts
The Respondents, during the period material here, operated on a 24-hour a
day and 7-day a week basis. Drivers were assigned several trips which they
executed continuously a On completing their assignment they were expected to
service their tractor and call their "buddy" who took over the transport. After
12 to 14 hours' rest incoming drivers took on a new assignment. While their basic
week was 40 hours, they customarily made considerable overtime each week.
The gasoline, or other product, is loaded at the refinery or bulk station under
the supervision of the man in charge. The tiailers are rated as to their liquid
measure capacity in gallons After each compartment is filled to an established
marker it is sealed. Before the load is turned over to the driver's custody all
other outlets are sealed. On arrival at the destination the seals are normally
broken by the consignee, the gasoline pumped off by him and the compartments
inspected to insure full delivery. Under 24 hours' operation, about half the de-
liveries were made at night. In the war years the points of delivery were often
unattended during night hours. It then became the responsibility of the drivers
to break the seals and make deliveries. Under gasoline rationing and scarcity
such unwatched delivery involved an obvious "moral hazard." This hazard was
increased since the Respondents' plant was also normally unattended after 6
p. in. Drivers at night were then almost entirely unsupervised.
The record makes clear that complete drainage of the trailers was a matter
of some difficulty. The bottoms of the compartments were uneven and contained
small pockets. -Unloading platforms frequently were not perfectly level. Cow-
plete drainage might involve driving the transport to a level site and completing
the drainage by hand. Extreme pains in securing a full delivery were evidenced
s Testimony by W. H. Ford suggests that the normal assignment was three trips. It
reads,
In other words, to explain that it little more fully, one driver might haul three loads
of material out of, say, the Ironton terminal of the Texas Company to Sciotoville in
his normal day's work ; or he might pull three from the refinery into the bulk plant
or another bulk plant in the Portsmouth area ; or he might pull three loads from
Ashland to Gallipolis in his normal shift of work.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the testimony of J D Duval, a consignee for the Texas Company with 10
years' experience. He was called as a witness for the Respondents. Excerpfs
from his testimony read,
On some of these transports, you had to either jack up the front end, build
it up, or drain it out in a bucket. * * * I always looked at the transport
after they had been unloaded to see that all of the gas was taken out of
them, because in most transports they won't drain exactly. Some times
we have to take pieces of timber, six or eight inches, and lift the hind end
of the tractor, to raise up the tank and let it run back so it will come out, you
see ; and after we get through all of that you drive up on a little raise, we
look at it to see if it's all out of the transport
That Duval was unusually careful in his methods of operation was indicated by
his testimony that every delivery to his station was received by him or his
agent.
Even though all reasonable efforts are made to insure complete delivery, the
transports on return to the Respondents' lot will contain some gasoline.' This
results from the shaking down of gasoline which adheres to the transports'
walls, from the condensation of gasoline vapors in the compartments and, in
some cases, from residues left because the unloading was done on unlevel sur-
faces. It is evident from the record made that the drivers had full knowledge
of the idiosyncrasies of the transports entrusted to their care;" educated eyes
as to the characteristics of unloading platforms, and experienced judgment as
to the probable drainage in the trailers on their return to the home lot. As ap-
pears below they were accustomed to regard such drainage as a perquisite of
their jobs. Their estimate of a reasonable amount was 3 or 4 gallons from a
transport rated at liquid measure near 8,000 gallons in capacity. It is agreed
that under hasty, careless, or calculated handling the amount might be much in-
creased. It is in evidence that, when transports were changed over from gaso-
line or naphtha to kerosene hauling and must be cleansed of their highly in-
flammable products, any drainage found in the tractors was frequently thrown
on the ground and wasted.
The first contact made by the Union with the Respondents, so far as the record
reflects, occurred in the winter of 1942. Unassailed and credited testimony by
Orville Aitis, business representative for the Union, relative to the incident,
reads,
I asked them [the Respondents] how they felt about an organization, and
* * * John Ford says, "We get along just as well without the Union. We
have no need for an organization here. The men is all satisfied."
Thereafter, organizational efforts were dropped until March of 1944. After
securing several applications, Artis had a talk with the Respondents in that
month. It was arranged that the drivers would be called in to allow opportunity
for the Union to hold a meeting after which a vote would be taken to determine
how many drivers wanted a uion. This meeting was held at a hotel in Ironton
on March 22, 1944, and was addressed by Artis and Dale Mann, an official of
Local 413 of the Union. None of the Respondents were present, but another
brother, Paul Ford, who at the time was employed as a driver, attended the
4 Driver Emil Hartwig, as Respondents' witness, testified that if the unloading place was
level the gasoline "would all dram out with the exception of three gallons."
'Thus Pancake testified,
well, it would just depend on some of the manifolds in the trucks, dropping down on
one side In fact, the trailer that I drove did. If it is unloaded from the right side
there was some three or four gallons left in the side.
FORD BROTHERS 57
meeting as a. qualified voter. The vote taken on the question of union affilia-
tion resulted in 10 affirmative and 11 negative votes e
In late March 1945 Artis again solicited the membership of Respondents' em-
ployees. His efforts continued until early May. Signed application cards were
produced at the hearing and submitted to the examination of the parties. They
show that 4 drivers signed on May 15, 1945; 10, including Pancake, on May 23 ;
and 1 on May 20.' In addition, Driver Cecil Cheek, whose card was not avail-
able, was a paid up member of the Union. On May 28, 1945, Artis wrote to the
Respondents claiming majority representation and asking for a conference for
the purpose of negotiating a contract. Efforts to arrange a meeting were dis-
rupted by the discharge of Pancake on June 4, 1945, and a subsequent work
stoppage participated in by the 15 other employees who had signed union authori-
zations.
B. The disci innvnatory discharge
Edward Pancake was first hired by the Respondents in February 1937 as a
driver at an initial wage of $15 per week. He had had prior experience as a
truck driver extending to 1924 In October 1938 he was arrested on complaint
of an inspector for the Public Utilities Commission for carrying unauthorized
persons on his truck. On October 27, 1938, he was convicted in a Justice of
the Peace Court and fined $25 and costs, amounting in all to $44.10, which he
paid On the following day he was again charged with failure to prepare proper
trip sheets. The disposition of this charge does not appear in the record. Testi-
mony is conflicting as to whether Pancake was discharged by the Respondents
for this offense. Pancake testified positively that his employment continued
without break; John Ford that he was discharged and "was off a short time."
Ford further testified that Pancake was put back to work on his promise that
he would do better in the future .7
In 1940 Pancake took part in concerted activities of the drivers calculated
to secure an advance in wages s At this time W. H Ford called Pancake
aside and asked him the cause for unrest among the drivers. Pancake ascribed
it to the fact that they were "not getting enough money." After discussion
Ford said, "well, Ed, what you do, you see the boys and get everything all the
way you want it and come in and maybe we can iron out something." Later
Ford called Pancake and two other drivers in for further discussion but nothing
was done. About the same time Pancake, and other employees, employed a
lawyer to draw up a petition requesting an increase in wages which was signed
and placed in the office. Later W. H Ford, with the petition in hand, met
Pancake and another driver and assured them, "Boys, you don't need no con-
tracts like this or no signed papers." They had some further explanatory dis-
cussion but the desired raise in wages did not result.
By successive raises of $2 50 and $3 per week, Pancake's initial salary in-
creased to $30 weekly by the middle of 1942. In July of that year, Pancake,
with three other drivers of the Respondents, had made application for jobs
with a refining company. What thereafter happened is recorded in Pancake's
testimony as follows:
This account is drawn from the testimony of Artis, W. H. Ford and Employee Marvin
Dodd Their statements aie in substantial agieement.
7 The undersigned does not find it necessary to resolve this conflict of testimony since
it is clear that the matter was settled and has no significance in later events
8 This account rests on uncontroveited and credited testimony by Pancake No fault is
here ascribed to the Respondents , or any of them The significance of the incident lies in
the indication that the Respondents regarded Pancake as a leader among the drivers.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Well, it was no secret, so I came in one day and John asked me didn't I
have an application in over at Ashland Oil and Refining Company, and I said
"Yes," and he said, "Why didn't you tell me," and I said, "I didn't think I
had to tell you. * * * I didn't have any contract signed with you fellows
to work for you fellows from now on and I thought I was free to get a job
when I wanted to. * * * If you fellows don't like it or are through with
me, why, give me my money, or I'll go ahead and work until I get my job,"
and Chet says to John, "we just as well pay him," so they paid me off.
John Ford's testimony was that Pancake announced one evening that he
was "quitting the first of the month" whereupon he [John Ford] retorted,
"You're not quitting the first of the month ; you're quitting right now." Al-
though Ford testified that Pancake was let go "because he was continually
causing us trouble," he gave no evidence to support this general complaint.
Further, he stated, "I did it because I found out that he was going to quit the
first of the month, and I told him that he could go right then." After con-
sideration of the record and the demeanor of these witnesses the undersigned
concludes and finds that Pancake's account of the incident is substantially
correct. It is further found that no fault can be ascribed to Pancake in this
occurrence.
After some 9 months in other employment Pancake applied for work with the
Respondents On the initiative of W. H. Ford, after consultation with his
brother Chester, Pancake was rehired. He was, however, treated as a new
employee rather than as a reinstated driver. After working some weeks, as his
unassailed and credited testimony states and the undersigned finds, Pancake
discovered that the other experienced drivers were receiving $33.50 weekly,
while his own base pay was but $30. Pancake applied to Wilbur and Chester
in turn for the higher wage, pointing out that, while newly rehired, he was
a well experienced driver. After some weeks had elapsed this increase was
granted. Pancake's base pay for a 40-hour week continued at $3350 until his
discharge on June 4, 1945.
Late in May 1945, Pancake participated in a conversation with Wilbur Ford
which was witnessed by employees Emil Hartwig, O. R. Colley' and John
Friend. Because of the significance of this incident in determining the under-
lying reasons for Pancake's discharge, the testimony of W. H. Ford regarding
the conversation is here quoted at length. Ford, as he stated, directed his
remarks to Pancake, and, after using an expression which denoted that his
curiosity was greatly aroused, continued,
I heard some grumblings going on around there that I didn't understand
what it was all about, if there was anything I could do or say or look
into, I thought maybe I might be of some benefit to him or to the men; if
there was something wrong that I might be able to correct, I would look
into that.
* * * * * * *
I don't exactly recall the word-for-word conversation with Pancake.
But it was on the general line that he said, " * * * us fellows is talking
something about we'd like to have a national organization in here to repre-
sent us." I said , "You're referring I presume to a Union " He said, "Yes."
I said, "Well, Ed, that 's all right * * ' I can't object to this and I
don't object to it."
I said, "I'll just inject this thought of my own that I always was under
the impression here that if there was something wrong that you could come
These names sometimes are reported erroneously as Earl Hardwicke and Caulley In
the record.
FORD BROTHERS 59
to me or to Chet or John ; if we couldn't correct it, we'd tell you why ; if it
could be corrected, it would be done. That still goes, as of today, and
sometime, probably anytime, in the future, as far as that goes."
Pancake says to me, * * * "Well, if I want something or if something
is wrong and I come to you or go in the office there, I'll probably be told
where to go right quick " I said, "Well that probably would be true in
some respects, but I would doubt that very seriously."
Well, he said, "You know, if we have a national organization representing
us, we feel more secure in our jobs and we have more security."
I said "Well, Ed, that's possibly true. But * * * it won't make any
difference to me if I knew and seen you or any one else doing something
that was against any policy or rule of this company, you would be discharged
as quickly in the Union as you could be out of the Union. I always felt it
was my place to run this business and I was going to try to run it as long
as I had my name on any papers that pertained to it. I have to look after it
and I have to answer to the shippers for their complaints and I have to see
that we have business and if we don't have .business, we have no need for
you or anybody, that would be used in connection with operating our business."
* * * * * *
I said to Ed, "Now understand, Ed, you do as you please, or you men do as,
you see fit." "But, it will probably happen this way You men organize,
have your union Then, when it cones in here and the things don't go
exactly the way you want it to go, a gang of you get out or discuss some-
thing, I will assume if I see you that I am one of the S B's that run the
business."
Pancake's testimony as to this interview is in general agreement with that
of W. H. Ford. Pancake stated that the underlying cause for the unrest among
the drivers was a desire for more money. He quotes Ford as saying, "A union
is all right but they never stop at one thing. If they get something, in a little
while they want something else." Pancake's credited testimony about the close
of the conversation reads as follows :
[W. H. Ford] said, "Well, Ed, here's the way it is. If a Union comes in
here, you couldn't come down here in the morning and speak to me and I
couldn't speak to you. I'd be a son-of-a-bitch in the presence of you boys
and you would be a son-of-a-bitch." And I said * * * "and you mean we
couldn't go fishing or hunting like we used to?" * * * And he said, no,
and I said, "Well, if I got to work here for nothing to get to fish and hunt
with you, I would just as soon be a son-of-a-bitch." 11
10 Hartwig as a Respondents' witness gave testimony reading as follows :
[W. H. Ford] said something about, "Well, if this goes Union and I catch three or
four fellows out in a bunch talking, I guess I'll presume that I'm a son-of-a-bitch,
that you're talking about me."
Hartwig further testified that Ford said, if a Union's "what it takes to cure their troubles
it's all right with him " After Hartwig's memory had been refreshed by reference to a
statement given to a Board agent, he remembered that Ford had said 'there won't be no
more parties or fishing trips."
Colley gave testimony which corroborates the statements of Pancake. It reads as
follows :
Well, we talked about the Union, and W. H. Ford said, "Otherwise, if the Union
comes in, why, * * * We'll be sons-of-bitches in your faces, and we'll be the
same to you" ; and Pancake said, "You mean we can't go rabbit hunting or fishing to-
gether like we have been?" and he said, "No, sir, our conversation and our hunting
trips and stuff like that will be over."
Friend did not testify.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With a single exception" no criticism was voiced at the hearing of Pancake's
performance of his duties as a driver . No mention was made of his having been
involved in serious mishaps or accidents during his 8 years' employment with
the Respondents as a driver. Pancake testified without contradiction, and the
undersigned finds, that he had never been reprimanded for his driving while
employed by the Respondents. He gave further credited testimony that, as
an older driver, he was assigned the mountain trips in winter time, which were
the "tougher" runs.
The incidents immediately preceding Pancake's discharge on June 4, 1945, are
not in dispute. When he came in from his trip that morning W. H. Ford ob-
served him drawing gasoline from his trailers and putting it in the tank of his
automobile. Wilbur called his brother John to observe Pancake's actions He
then summoned Pancake to the office. What then transpired was stated by
Pancake as follows:,
W. H. [Ford] came out and he said, "You put some gas in your car?"
and I said, "Yes, sir," and he said, "Come on in the office," and I said,
"All right." * * * and he said to me, "You know Ed, it's against the rule,"
and I said, "What rule?" and he said, "Well, you know its against the rule."
I said, "Well, Huck, what rule are you talking about?" He said, "Anyway,
it's against the rule."
He never would say what rule or anything about it, and I figured right
then what it was all about, and I said, "Well, if that the way you want to
play, I can play too," and lie said, "No, you won't do no playing. You're dis-
charged from this Company."
W. H. Ford's account of the interchange between himself and Pancake, as
recorded in his testimony, reads as follows :
I said, "Ed, you know that's strictly against all of the rules and regulations
of this organization."
He said, "Huck, you're just mad." I said, "Well, I probably have a right to
be mad."
He said, "Anything you might do to me, I will repay you." I said, "Well,
in that case, you're discharged, Ed, as of now," and that was the end of the
conversation with him.
It was Ford's further testimony that he had not definitely decided to discharge
Pancake when he called him to the office. There is little of material significance
to resolve in the divergencies of these accounts. The undersigned is impressed
by the straight-forward, vividly expressed account of Pancake with reference
to W. H. Ford's insistence on the rule. Ford's account supports this to the
extent that he stated that he had opened the conversation with a reference to the
rules. It is found that this part of the interview occurred substantially as stated
by Pancake.
11 J D Duval , a consignee for the Texas Company testified that Pancake delivered gas
to his station one night "sometime at the first part of 1945 " On checking the delivery
Duval noticed considerable gasoline remaining in a front compartment after the pump had
drawn out all possible gasoline . He directed Pancake to move the transport to level
ground In attempting to draw the gasoline out in buckets he found that the valve on
the front compartment had been closed Duval opened the valve and drew out, as he testi-
fied, "25 or 35 gallons, something like that " Prior to the hearing Duval had had no
direct contact with the Respondents He reported the incident "to the representative of
the Texas Company " None of the Respondents , each of whom appeared as a witness and
was examined at length , referred to this incident in his testimony . It is clear that the
incident affected neither the discharge of Pancake nor the later refusal to rehire him. In
this state of the record no significance is attached to the matter by the undersigned.
FORD BROTHERS 61
W. H. Ford assumed full responsibility for the decision to discharge Pancake.
When asked why he discharged Pancake, Ford replied, "For stealing gasoline
or taking gasoline from our truck and converting it to his own use." He declared
further, "That is solely the reason." It is clear from the record that the Re-
spondents' refusal to rehire Pancake has the same motivation as their decision
to discharge him
Conclusions as to Pancake's discharge
The Respondents aver that Pancake's discharge resulted from their investi-
gation of persistent complaints by their customers of excessive shortages on
deliveries in the period from January 1944 to the middle of 1945; that in the
endeavor to discover the cause of these excessive shortage claims and to hold
the drivers to an exact standard of performance the rules against drawing
gasoline from returned transports for personal use had been restated to the
drivers ; and that when Pancake was discovered violating this rule it was regarded
as full justification for his discharge.
Each of the Respondents testified that claims for excessive shortages were
chronic in the period stated. The only exact data presented in substantiation
of the general statement pertained to 22 deliveries made to the Texas Company at
various bulk plants in the period from January 6 to February 7, 1944. Seventeen
of these loads were delivered at night and only five in daylight hours ; fifteen
show shortages beyond the tolerance of 1/2 of 1 percent. However, these deliveries
being made in winter months the temperature readings assume large impor-
tance. Thus in a delivery of 6940 liquid gallons made January 28, 1944, the
temperature fell between loading and delivery from 55 to 35 degrees. This 20
degree temperature change accounts for over 83 gallons of the 172 gallons ostensi-
ble shortage.'z Temperatures were recorded for only 10 of the 22 deliveries13
In 12 cases no basis is furnished for computing proper corrections in the shortages
reported on liquid measure delivered. Moreover, these loads frequently were
delivered into partially filled tanks. Without exact data on the amount of gaso-
line in the tanks and temperature readings allowing corrections in the gallonage
contained before the load was delivered, no reliance can be placed on these alleged
shortages.
Ten different drivers are named as responsible for the 22 loads delivered. In
two cases the driver's name is omitted. Pancake did not handle any of these
loads. Driver Joe Criss delivered six loads, only one in day-time. On these loads,
shortages are reported ranging from 9 to 155 gallons per load, a total of 405
gallons on 46,560 gallons by liquid measure On one load of 7760 liquid measure
gallons, handled on January 6, 1944, a 10 degree fall in temperature should have
given a correction from a claimed shortage of 73 gallons to 27 gallons or well
within the tolerance of 1/_2 of 1 percent On the data presented, Driver Joe
Criss had a shortage on the six loads approaching 1 percent. No suggestion was
made that his performance merited criticism or reprimand.
At the hearing the parties stipulated that:
the exact causes for the shortages and the subsequent improvement have
never been determined I * * shortages * S. * can be caused by
errors and faulty meteiing at the refinery, spillage of gasoline en route from
refinery to bulk plant, mistakes and careless handling on the part of bulk
plant employees, which includes measuring of tanks and the handling of
gasoline by the employees, carelessness and theft of truck drivers or bulk
'3 The coefficient of expansion for gasoline is 0006 for each degree of temperature
change.
13 In one additional case a single reading is recorded.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant employees, failure to completely drain the tanks by truck drivers or
bulk plant employees, evaporation, inaccuracies or failure to take temperature
changes.
Under these circumstances the responsibility of Respondents' drivers for these
alleged shortages must be held to be remote and uncertain. Pancake is not
shown to have any direct connection therewith. It is admitted also that respon-
sibility for the shortages claimed was never fixed on the Respondents and no
financial obligation resulting was assumed by them.
That the practice by employees of draining gasoline from the returned trans-
ports and devoting it to personal use was a continuous and universal practice
is a necessary conclusion after consideration of the record All employee
witnesses heard, six called by the Board 14 and four called by the Respondents,'
testified that they had personally done so. Most of them further stated that they
had seen other employees do the same. In addition the parties stipulated that
seven additional employees 16 if called as witnesses would give similar testimony.
Moreover, the evidence requires the finding that each of the Respondents,
despite their denials as witnesses, was apprised of the practice, had authorized
it and repeatedly witnessed it. Pancake, Coyer and Nance testified that they
had been told by the Respondents to be sure there were no strangers around
when they drained gasoline. Coyer ascribed this statement definitely to W. H.
Ford ; Nance to both W. H. and Chester Ford. None of these statements was
specifically denied. The undersigned accepts them as true. Pancake gave
detailed and uncontroverted testimony, credited by the undersigned, regarding
preparations for a fishing expedition during which he drained gasoline from
transports to fill his own car and the Respondents' Buick and pick up truck
On another occasion he repaid 5 gallons of gasoline borrowed from the Respond-
ents' service tank with gasoline drained from a trailer and reported that fact
to W. H. Ford. Coyer gave similarly uncontroverted and credited testimony,
that "sometime early in 1944" he had drained some gasoline out of a transport,
while John [Ford] was standing right beside the trailer with me talking to me
while I was draining the gasoline out. This gasoline was then poured into
John Ford's car. Virgil Criss gave testimony that in the 2 years of his employ-
ment from July 1943 to June 4, 1945, lie had been told by Chester Ford that he
was at liberty to take gasoline from the trailers "if it was not over 5 gallons"
in amount. Criss gave further testimony regarding an occasion when Driver
Gray Williams drained a considerable quantity of gasoline from a trailer in
the presence of Chester Ford, provoking the comment from Ford, as Criss
testified, "That's entirely too much gasoline to bring back from a bulk plant
* * * five gallons is a sufficient amount to be brought back from the bulk
plant." Chester Ford made no reference to this incident in his testimony.
Accordingly the statements of Criss are credited as true by the undersigned.
Each of the three Respondents testified in general terms that lie had instructed
the drivers in groups and individually that the trailers must be completely
emptied at the bulk plants and that no gasoline continued therein might be
taken for personal use by the drivers. When pressed for supporting detail
however as to time, place and individuals told, the Respondents' testimony lacked
in specificity. None of the named individual drivers told directly that the
140. R. Colley, Edward Pancake, Kenneth Hinson, Virgil Criss, Raymond Coyer and
Carl Nance.
16 William Pauley, Emil Hartwig, Marvin Dodd and Tom Greenley.
16 Edward Hughes, John Dheel, Dorsey Pelphrey, William Ratliff, Homer Mayse, John
Shelton, and John F. Richardson. This list omits Pauley who appeared as Respondents'
witness.
FORD BROTHERS 63
rules forbade taking gas from the trailers. John Ford testified that on one
occasion, not dated, he warned Virgil Criss, Friend and Shelton "that they
might be able to get by with taking gasoline out of the transport like that, but
if I or any of the Ford Brothers ever caught them, they might as well come
and ask for their checks because * * * that was grounds for discharge."
Criss and Shelton of the three drivers named by John Ford appeared as wit-
nesses. Shelton was not questioned about this matter. Criss testified positively
that there was no rule against the practice of draining gasoline from trailers and,
as quoted above, that Chester Ford had directly authorized him to drain gasoline.
Employees Hinson, Hartwig and Nance also testified specifically that there was
no rule forbidding the taking of gasoline remaining in the trailers. Excerpts
from D'ance's testimony read :
I have seen them [the drivers] drain them there all day long as they would
come in. Ford brothers would be around the lot, in the garage working
around the trucks at the time * * * [It was a] common occurrence,
every day
Hinson testified that he had "seen lots of drivers draining gasoline." Colley's
testimony was of similar purport. He stated that when draining gas he paid
no attention to the presence of the Respondents since, "It was just the practice."
All six of the drivers who appeared as witnesses for the Board specifically
denied that they had been told by any one of the Respondents that draining
gas was forbidden Only one had heard of such a rule. Colley testified that
approximately May 28 or 29, 1945, he had been told by Driver Gray Williams,
his buddy, that "he had been informed some of the boys had been told not to
take any more gas, and if he was me he wouldn't either."
Mechanic William Pauley, a witness called by the Respondents, in his cross-
examination confirmed a statement previously given by him to a Board agent
which read, "I never heard the Fords tell me or anybody else not to take gaso-
line." Employee Emil Hartwig, a Respondents' witness, testified that he together
with Drivers Marvin Dodd and Dodge Irvin had been told by W. H. Ford "at
least two months before Pancake was disharged," that this practice [draining
gas] was to be discontinued but that he had known it was permissible until
that time. It was Hartwig's testimony that he had never heard Wilbur give
similar instruction to any other drivers than those named and that he had never
heard either John or Chester Ford give such orders. Dodd testified that he was
similarly instructed by W. H. Ford and that he was given this order "sometime, I
think, in January of [19]45." He further testified that while different ones of
the [employees were] there he "couldn't say just who." The testimony of the
six Board's witnesses was straightforward, consistent and mutually corrobo-
rative. It was largely supported by stipulations entered in the record and by
testimony given by employees called by the Respondents. The testimony of
the Respondents was often vague, lacking in specific detail and at times became
contradictory and evasive. In this state of the record the undersigned accepts
the testimony of the Board's witnesses and rejects such testimony by, and for,
the Respondents as conflicts therewith.
After consideration of the full record the undersigned concludes and finds
that Pancake had been a satisfactory employee for over 8 years. He had had
repeated increases in wages and at the time of his discharge was paid the high-
est driver's rate. He was known by the Respondents to be an active union
protagonist and a leader in concerted activities among the employees. The drain-
ing of gasoline from the transports was a practice of long standing, well known
to each of the Respondents and frequently expressly approved by them. The
739926-47-vol. 73-6
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge of Pancake for this alleged reason was palpably discriminatory. All
the drivers admittedly engaged in the same practice. The Respondents had
singled Pancake out and demanded that he defend the Union's position. As
appears below they had openly expressed a determination to penalize union
members and to find a pretext to discharge the employee, Virgil Criss, suspected
of union leadership. The undersigned concludes and finds that the discharge
of Edward Pancake on June 4, 1945, was disci iininatory, motivated by his union
membership and activity and designed to discourage membership in the Union.
By this act the Respondents have discriminated in regard to his hire and tenure of
employment and the terms and conditions of his employment, have discouraged
membership in a labor union and have interfered with, restrained, and coerced
their employees in the exercise of the rights guaranteed in Section 7 of the Act.
C. The si ike a and attempted settlement
Pancake's testimony about events immediately following his discharge, reads
as follows :
I walked on over and Ed Hughes,18 my buddy I had called was leaving with
the truck , and I stopped him and told him to take her back put her on the
lot, and he said , "What's the matter?" and I said , "They discharged me for
taking three gallons of gas" and he took the truck back and parked it and
we got hold of Dutch [Virgil ] Criss and stopped at Slim Colley 's there at
home.
Hughes called Virgil Criss on the telephone and told him of Pancake ' s discharge
and that he [ Hughes ] had parked his truck in the yard Hughes asked Criss'
advice and was told as to the truck, "That' s a good place to leave it," and
further advised that all the drivers should "just leave [ their trucks] set."
Criss' rationalization was, "I don't see no just cause for firing anybody for tak-
ing any gasoline out of the traileis." 1°
Hughes accompanied Pancake to Driver 0 R Colley's house within " thirty
minutes" after the discharge . Excerpts from Colley ' s testimony read,
He told me to get up, that the thing was 011,2' and I asked him what he meant
and he said , "They fired me" and I said, "What for" and he said, "I took three
gallons of gas out of the trailer."
Colley and the union members , as they were informed of the discharge, con-
gregated at a point "across the street from the entrance that leads over to the
garage and the headquarters " From this vantage point they intercepted drivers
bringing their trucks in and appealed to them to support the work stoppage. The
group grew gradually until the 15 drivers who struck were assembled Criss
described their attitude as follows :
We had come to the conclusion that Ed Pancake was unjustly fired * * *
and that we didn't see how the rest of us could work under those circum-
17 The account of the strike is drawn from the unassailed testimony of the witnesses
indicated
15 Hughes appeared as a witness but was not questioned regarding this incident.
19 Quotations in this paragraph are from Criss' testimony.
20 Under cross-examination Collev explained, "Well, otherwise he meant that we were
going to have a show down right then " Pancake's explanation was, "The first time that
one of our foots slipped , there would be somebody fired. That ' s what I mean " And again,
"Well, all that I meant by it, when they discharged mr, or nred me, the only way that I
could figure that theie was one man out of the Union, that they figured that they could
get rid of , and the rest of them might drop it and leave it go, see "
FORD BROTHERS 65
stances We decided to just rest until we could get further instructions
from our Union what to do.
During the morning of June 4 , Criss reached Artis in Columbus , Ohio, by
telephone and said, as Artis testified,
The boys are not working, they're out. They [ the Respondents] fired
Ed Pancake this morning for taking gas and the boys refused to go to work
for he was fired for an unjust cause.
Criss asked for advice. Artis stated that he would confer with J. O. Ford,
an attorney and counsel for his brothers , the Respondents , to whom Artis had
been referred by them and would telephone Criss later Artis advised the
drivers on Monday, June 4, and again on the following Wednesday not to take
their trucks out . Although informal picketing continued for a week , no unto-
ward incidents occurred . The character of the appeal made to non-union
drivers is made clear by the testimony of Respondents ' witness, Marvin Dodd,
reading as follows :
Well, I came in and as I remember , sometime after midnight of Tuesday
morning [June 5] and noticed the other trucks being in and paiked along
the lot I got in my car and started home , and I think Carl Nance and Ed
Hughes came over to the end of the lane and told me that they [Respondents],
fired Ed IPancake ] and they weren 't rolling the trucks and asked me not to
roll mine , and that was all they had to say to me, and I told them as things
stood then I wouldn 't roll, and I went on home and went to bed and forgot
about it.
W H. Ford testified that the strike was entirely peaceful, that no picket line
wis thrown up around the plant and that there was no "trouble or commotion
or fuss whatever."
The trucks remained idle on Monday and Tuesday 21 On Tuesday, June 5,
about 3:30 p in, John Forn began contacting the drivers, except Pancake, in
person and by telephone He told each employee that his truck was "ready to
roll" and asked if the driver was ready to take it out. Fifteen drivers indicated
that they would not report whereupon Ford told them, "Then we're presuming
that you're quitting and your check and release will be ready for you " Seven
drivers' gave affirmative answers to Ford's question These employees were
promptly assigned to trips and continued in Respondents' employment.
As noted above Artis had, on May 28, 1945, written to W H. Ford claiming
to represent a majority of the men and asking that a conference be arranged
for the purpose of negotiating a contract. Ford thereupon communicated with
his brother, J O. Ford, an attorney who customarily represented the Respond-
ents On June 1, Dale Mann, business representative of Local 413 of the
Union, whom Artis had asked to interview J 0 Ford, asked Ford for an appoint-
ment Mann and Ford were on friendly terms. They agreed that the Respond-
ents would necessarily recognize the Union as the statutory representative of
the employees if majority membership weie established J 0 Ford was, not
authorized to make commitments for the Respondents. He and Mann arranged
that the Respondents would meet Mann and Artis in J 0 Ford's office at
21 The findings in this paragraph are based on John Ford's unassailed testimony as cor-
roborated by various witnesses, and on a detailed memorandum which he dictated at the
time and which was entered in the iecoid
22 Tom Greenley, Dodge Ervin, Marvin Dodd, Gray Williams, Emil Hartwig, John Fink,
and Burnell Smith
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Columbus, Ohio, on Tuesday, June 5, 1946. "with respect to the establishing
of the proof" that the Union possessed a majority membership.
On Monday; June 5, J 0 Ford was informed by telephone by both Mann and
the Respondents of the discharge of Pancake and the strike. He then arranged
a meeting for June 6 between the Respondents, represented by himself, W H.
and Chester Ford, and the Union represented by Artis, Mann and Rudy Minkin,
secretary and treasurer of Local 413 of the Union. The Union proposed that
all the drivers, except Pancake, should be reinstated and that Pancake's case
should be submitted to arbitration at a later date; The Respondents' position
was that they would agree to rehire the 15 striking drivers z3 but "that Pancake
was fired for stealing gasoline and he was going to stay fired." u The Union
refused to settle on these terms.
At the instance of J. O. Ford, the services of Commissioner Palmer of the
United States Conciliation Service were secured. After interviewing the parties
he arranged a conference on June 21, 1945, at a hotel in Ironton, Ohio. Ten of
the striking drivers were present as well as Pancake, Artis and Minkin for the
Union. Each of the Respondents and J. O. Ford attended. The drivers present
all voted affirmatively on the Union's proposition that the drivers, except Pan-
cake, be reinstated and his case be arbitrated. The Respondents maintained
their original stand. Since both parties steadfastly maintained their positions
nothing was accomplished?`
The 15 striking drivers were paid off on June 6, 1945, and given releases.
Thereafter, new drivers were hired. In some four or five cases drivers returned
from military service were reinstated. At the time of the hearing in the instant
proceeding all vacancies had been filled. The testimony of striking drivers at the
hearing indicates that, in effect, they were still on strike. Although some of
them had written letters of application to the Respondents, their replies under
questioning as witnesses, indicated clearly that their acceptance of reinstate-
ment would be conditioned by the rehiring of Pancake and the establishing of the
Union as the statutory representative of the employees. Thus, Nance wrote a
letter, received by the Respondents on or about May 5, 1946, reading, "I would
like at this time to return to work and be reinstated as a driver." An excerpt
from Nance's testimony, however, reads,
Q. If you were offered your job back at Fords now, Carl, would you go back?
A. Not until Ed Pancake's case was settled because I figured he was fired for
an unjust cause.
Similarly, Colley testified that he wrote a letter to the Respondents May 18,
1946, saying substantially, that he was tired of his current job and was ready
to go back to work if they had an opening. When asked at the hearing whether
he would now go back to the Ford Brothers to work as a driver, Colley replied,
23 This account is drawn from the testimony of Artis and of the Respondents.
24 Excerpts from W. H. Ford's testimony read,
Just briefly, they insisted that we discuss Pancake's case which I absolutely retused.
I absolutely agreed to rehire the men if and when they applied for a job with the
understanding that if we needed men.
J. O. Ford testified that in the minds of the Respondents "rehired" as applied to the strik-
ing drivers meant taken on as new employees, I. e., with loss of seniority. Respondents'
answer also states that several days after June 5, 1946, offers "to rehire as new em-
ployees" were made to all who had struck.
25 These findings are based on testimony by J. O. Ford and Artis. The latter made min-
utes of the conference which were introduced into the record. None of these facts is in
dispute.
24 The Respondents denied receiving this letter.
FORD BROTHERS 67
"I'd have to consider." He explained under cross-examination that he would
not go back if the Respondents' plant remained non-union .21
The undersigned concludes and finds that the strike beginning June 4, 1945,
resulted directly from the discriminatory discharge of Pancake. Its continuation
to the time of the hearing was also due to the Respondents' unfair labor practices
in that they refused to rehire Pancake.
D. Further interference, restraint, or coercion
Because of the limitations as to dates stated in the complaint, no incidents
occurring prior to March 1, 1945, are set forth in this section. As noted below most
of the incidents discussed here were denied by the individual Respondents referred
to. However the testimony of these Board witnesses was detailed, vividly stated
and persuasive The witnesses were careful and straightforward. Their testi-
mony was consistent and mutually corroborative. The Respondents, on the other
hand, were sometimes evasive and frequently failed to give supporting detail to
general statements. As noted above they are convicted by the record of inaccu-
racy and lack of frankness in their testimony relating to the practice of draining
gas from the tank transports. After considering the full record and the demeanor
of the witnesses, the undersigned has accepted the testimony of Board witnesses
set forth in this section as true and rejected such testimony of the Respondents as
conflicts therewith.
Driver Virgil Criss testified that "within a month or two" before Pancake was
discharged Chester Ford came to him in front of the garage and said,
I wonder if we can have a get-together to help the cause * * * Well,
when this Union deal is to come up, if we'd have a beer and sandwiches now I
think we could overcome a lot of this Union deal.
Criss' further testimony is recorded as follows:
I said , "Chester, its too late." He said, "Why, I think its five or six men that's
causing this , this union trouble." * * * He named Ed Pancake, Carl
Nance, John Friend, John Shelton, and that's all the names that I can recall
* * * When he called those named to me, I said, "Chester, you are naming
five men that's causing you this trouble. You're blaming five or six men, and
you're not blaming enough. It's easier to call the man that isn't causing you
Union trouble than it is to call the men that is causing you the Union trouble,"
and he says, "What do you mean?", and I said, "There's fifteen or sixteen men
belonging to this."
Criss also gave testimony relative to a conversation with W. H. and Chester
Ford occurring in April 1945, "standing directly in front of the garage, leaning on
the rear of my brother's automobile." It was Criss' testimony that Chester Ford
asked him "how much money [he] would have to have to go on working and keep
[his] mouth shut," in the event of a strike. When Criss made a non-committal
reply W. H. Ford said, "How about 85 cents an hour?" At the time Criss was
receiving 60 cents an hour for the first 50 hours weekly and 70 cents an hour for
any additional time. When Criss declined to give a definite answer W. H. Ford
cautioned him saying, "This is strictly confidential. This is to be told to nobody."
W. II Ford testified that there "was some discussion of possibly an increase of
wages or 85 cents back in that time." He denied telling Criss what was going to
r, These replies and similar answers by Ratliff and Hinson caused the Board to withdraw
its contention that these drivers and H. B Cook had been refused reinstatement by the
Respondents after an unqualified request for reinstatement.
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
happen in the event of a strike, stating that he had no reason at the time to suspect
"any disgruntlement amongst the drivers." In this state of the recoi d the under-
signed accepts Criss' account as substantially correct.
Employee John C Shelton testified that on an occasion, dated by the Respond-
ents as May 11, 1945, he rode back to Coal Grove from the scene of an accident
with Chester and W. H. Ford. Chester then warned, as Shelton's testimony reads,
That if we had of went in with the Union, they could have come up there
and could have fired us for being in a wreck and if we had trouble in the
road, they could keep us there as long as they pleased and not even send a
man out to fix it * * * . He went ahead to say that if it did go Union,
they could cut our time down until we wasn' t making as much as we was
making now. That is the way the conversation went 28
It was the credited testimony of Driver Raymond Coyer that W. H Ford, about
3 weeks before Pancake's discharge, asked him to ride to Ashland. Ford asked
Coyer if he had ever signed a union card. Coyer replied that he had and had
paid his dues. Ford further asked who was the leader of the Union When
Coyer replied that Ford knew as much about that as he did, Ford said, "he
figured it was the Criss brothers." He further stated that he had heard that the
Criss brothers were sent in there to organize them
Driver Kenneth Hinson testified that about May 20, 1945, W. H Ford asked
him "what would be a fair wage." Hinson's further testimony reads.
I told him I didn't know what a fair increase would be, because I had
already signed the Union card R * *. Why, * * * he asked me if I
thought 85 cents an hour * '* * I was then getting 70 cents an
hour * * * would be a fair wage.
Hinson did not definitely answer this inquiry. Ford warned him, "not to say
anything else to the rest of the drivers about him talking to me." This testi-
mony by Hinson was not controverted and is accordingly credited by the under-
signed.
Testimony was presented by Employee William Ratliff concerning a conversa-
tion in Respondents' office with John Ford, in the presence of Office Employee
"Colonel" Lenhart in late May 1945 Ford asked Ratliff if he had a union card.
Ratliff replied untruthfully, as he admitted, that he had never seen one Ford
then advised him forcehilly, using a vulgar expression, to reject one if offered
"because you don't have to belong to a Union to work here.""
Coyer gave further testimony relative to a conversation on June 4, 1945 He
had just come in after a 24 hour tour of duty and learned of Pancake's discharge.
On entering the office he found all three Respondents there and also drivers Emil
Hartwig and "Pop" Fink Chester Ford said, as Coyer's testimony reads,
I am talking to you friend to friend now, and if it goes Union, I will still be
your friend, and if it don't go Union I will still be your friend.
* * * He said if it went Union he would follow Dutch [Virgil] Criss
until he got a chance to fire him, and the Union wouldn't uphold him.
None of the Respondents denied that this incident occurred as Coyer testified.
Hartwig was not questioned about the matter and Fink was not called as ii
witness. The undersigned, under these circumstances, credits Coyer's testimony.
"Chester Foid denied that on this occasion he had discussed the Union with Shelton.
He made no further specific denial His general denial is rejected by the undersigned.
29 While W. H Ford testified that he had never questioned any of the employees about
union membership he did not specifically deny this detailed statement of Coyer.
80 Jelin Ford's denial of this incident is rejected by the undersigned after consideration
of the full record and of the demeanor of the witnesses.
FORD BROTHERS 69
Employee Carl Nance had a conversation on the same day in the office where
all three Respondents were present Nance came in just after noon and went
into the office to turn in his bills of lading Nance had just been told of Pan-
cake 's discharge and had promised to uphold the union members ' plan to cease
working Chester Ford asked Nance if lie would be ready to go back to work after
12 or 14 hours' rest Nance, as he testified, told him "No, not until everything was
settled." Nance's further testimony reads,
and he [Chester Ford] said, "Carl, do you know that there is no Union in
the United States would uphold you in what you just said?" I said, "I don't
know, Chet, but I hope to hell you know what you are talking about."
None of the Respondents denied that they were present on this occasion as
testified by Nance, nor that the conversation occurred The undersigned credits
Nance's testimony.
The Respondents by purposing "beer and sandwiches" as a deterrent to union
activity, by offering individual increases in wages to Drivers Virgil Criss and
Hinson in an effort to seduce them from their union allegiance; by their threats
of discrimination against union members expressed to Employee Shelton ; by
questioning employees about their union membership and about union leadership ;
by threats to discharge the supposed leader of the Union and by the discharge
and refusal to rehire of Edward Pancake have interfered with, restrained, and
coerced their employees within the meaning of Section S (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents as set forth in Section III, above, occurring
in connection with the operations of the Respondents described in Section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and have led and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices, the
undersigned will recommend that they cease and desist therefrom and take
certain affirmative action found necessary to effectuate the policies of the Act.
It has been found that the Respondents discharged Edward Pancake on June
4, 1945, and thereafter refused to reinstate him, thus unlawfully discriminating
in regard to his hire and tenure of employment and the terms and conditions
of his employment. It will accordingly be recommended that the Respondents
be ordered to offer Pancake immediate and full reinstatement to his former or
a substantially equivalent position without prejudice to his seniority or other
rights and privileges he may have. It will be further recommended that the
Respondents make him whole for any loss of pay he may have suffered by reason
of the Respondents' discrinnnatoi y action by payment to him of a sum of money
equal to the amount he would normally have earned as wages from the date
of his discriminatory discharge to the date of the Respondents ' offer of reni-
statement , less his net earnings 31 during said period.
"By " net earnings" is meant earnings less expenses , such as for transportation, room,
and boaid, incurred by an employee in connection with obtaining work and working else-
where than for the Respondents, 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. R . 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.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned has found that 15 employees of the Respondents went on
strike on June 4, 1945, and that this strike resulted directly from, and was pro-
longed by, the unfair labor practices of the Respondents. It will therefore be
recommended that the Board order the Respondents to offer the 15 employees
named in Appendix A, upon their application, immediate and full reinstatement
to their former or substantially equivalent positions without prejudice to their
seniority or other rights and privileges they may have, dismissing if necessary
any employees hired since June 4, 1945, to fill the places which these striking
employees previously had held. If after this is done it appears that, because
of reduction in the volume of Respondents' business, or because of the rein-
statement of employees returned from military service who may have rights of
employment which superseded that of some of the striking employees, there is
not sufficient employment immediately available to allow that all the others
be offered immediate reinstatement, all available positions shall be distributed
in accordance with Respondents' usual method as applied prior to June 4, 1945,
without discrimination against any employee because of his union affiliation or
activities, following a system of seniority to such extent as has been applied in
the conduct of Respondents' business prior to June 4, 1945. Those employees
remaining, if any, after such distribution for whom employment is not immedi-
ately available, shall be placed upon a preferential list prepared in accordance
with the principles set forth above and shall thereafter, be offered employment,
in accordance with such list, in their former or equivalent positions as such
employment becomes available and before other persons are hired for the work
which they had formerly done.
The undersigned will further recommend that the Respondents be ordered to
make whole those employees who went on strike on June 4, 1945, for any loss
of pay they may suffer by reason of the Respondents' refusal, if any, to reinstate
them as provided above, by payment to each of them of a sum of money equal
to that which he normally would have earned as wages during the period from
five (5) days after the date on which he applied for reinstatement to the (late
of the Respondents' offer of reinstatement, or placement on a preferential list,
less his net earnings, if any, during said period.
The pattern of conduct by Respondents set forth in this Intermediate Report
and their obvious underlying purposes convinces the undersigned that the unfair
labor practices found are potentially related to the other unfair labor practices
prescribed by the Act and that danger of their commission in the future is to
be anticipated from the Respondents' proven past conduct. In order therefore
to make effective the interdependent guarantees of Section 7 of the Act, the under-
signed will recommend that the Respondents be ordered to cease and desist from
in any manner infringing on the rights of employees which are protected by the
Act.
Upon the basis of the foregoing 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 and
Helpers of America, Local 143, affiliated with the American Federation of Labor,
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 and the
terms and conditions of employment of Edward Pancake, thereby discouraging
membership in a labor organization, the Respondents have engaged in and are
engaging in unfair labor practices within the meaning of Section 8 (3) of the
Act.
FORD BROTHERS 71
3. By interfering with, restraining, and coercing their employees in the ex-
ercise of the rights guaranteed in Section 7 of the Act, the Respondents have
engaged in and are engaged in unfair labor practices within the meaning of
Section 8 (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.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the Respondents, Wilbur Ford, Chester Ford, and John
Ford, co-partners, doing business as Ford Brothers, and their agents, successors,
and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local 143, affiliated with the
American Federation of Labor, or any other labor organization by discriminating
in regard to the hire and tenure of employment or any terms or conditions of
employment of their employees ;
(b) In any other manner interfering with, restraining, or coercing their em-
ployees in the exercise of the right to self-organization, to form, join or assist
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local 143, affiliated with the American Federation of Labor, 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 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 Edward Pancake immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority or other
rights and privileges;
(b) Make whole Edward Pancake for any loss of pay he may have suffered
by reason of the Respondents' discriminatory action against him;
(c) Upon their application, offer reinstatement to the employees who went on
strike June 4, 1945, as listed in Appendix A, in their former or substantially
equivalent positions without prejudice to their seniority and other rights and
privileges in the manner provided in the section of this Intermediate Report
entitled "The remedy" ;
(d) Make whole the employees listed in Appendix A for any loss of pay they
may have suffered by reason of the Respondents' refusal, if any, to reinstate them
pursuant to paragraph 2 (c), above, by payment to each of them of a sum of money
equal to that which he normally would have earned as wages, during the period
from five (5) days after the date on which he applied for reinstatement to the
date of the Respondents' offer of reinstatement, or placement upon a preferential
list, less his net earnings, if any, during said period ;
(e) Post at their plant in Coal Grove, Ohio, copies of the notice attached hereto
marked "Appendix B " Copies of said notice, to be furnished by the Regional
Director for the Ninth Region, after being signed by the Respondents' representa-
tive, shall be posted by the Respondents immediately upon the 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 the Respondents to insure that said notices
are not altered, defaced or covered by any other material ;
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Notify the Regional Director for the Ninth Region in writing, within ten
(10) days from the date of the receipt of this Intermediate Report, what steps
the Respondents have taken to comply therewith
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the Respondents notify said Regional Director
in writing that they will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the Respondents 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
motions 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 state-
ment of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file a
copy with the Regional Director. As further provided in said Section 33, should
any party desire permission to argue orally before the Board, request therefor
must be made in writing to the Board within ten (10) days from the date of
the order transferring the case to the Board. Any party desiring to submit a
brief in support of the Intermediate Report shall do so within fifteen (15) days
from the date of the order transferring the case to the Board, by filing with the
Board an original and four copies thereof, and by immediately serving a copy
thereof upon each of the other parties and the Regoinal Director.
CHARLES E. PERSONS,
Trial Examiner.
Dated September 4, 1946.
Cecil Cheek
O R. Colley
H. B. Cook
Raymond Coyer
Virgil F. Criss
John A. Dheel
John Friend
Kenneth G Hinson
APPENDIX A
Edward Hughes
Homer Mayse
Carl Nance
Dorsey W. Pelphrey
William Ratliff
John F. Richardson
John C. Shelton
APPENDIX B
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 em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist International Brotherhood of Teamsters,
Chauffeurs, Warehousemen, and Helpers of America A. F. of L., Local 143,
or any other labor organization, to bargain collectively through representa-
FORD BROTHERS 73
tires of their own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection.
We will offer to the employee named below immediate and full reinstate-
ment to his former or a substantially equivalent position without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
him whole for any loss of pay suffered as a result of the discrimination.
Kenneth G. Hinson
We will offer to the employees named below upon their application imme-
diate and full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and privileges
enjoyed.
Cecil Cheek Edward Hughes
0. R. Colley Homer Mayse
H. B. Cook Carl Nance
Raymond Coyer Dorsey W. Pelphrey
Virgil F. Criss William Ratliff
John A. Dheel John F. Richardson
John Friend John C. Shelton
Kenneth G . Hinson
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.
WILBUR FORD, CHESTER FORD, AND JOHN FORD,
CO-PARTNERS , d/b/a FORD BROTHERS,
Employer.
By ------------------------------------- ------------
(Representative ) ( Title)
Dated --------------------
NoTE.-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.