Fredrickson Motor Express Corp.

National Labor Relations Board - Board Decisions

Oct 10, 1972

199 N.L.R.B. 557 (N.L.R.B. 1972)

FREDRICKSON MOTOR EXPRESS CORPORATION 557
Fredrickson Motor Express Corporation and Interna-
tional Union of District 50, Allied and Technical
Workers of the United States and Canada. Cases
11-CA-4458, 11-CA-4476, 11-CA-4509, 11-
CA-5426, 11-CA-4568, and 11-CA-4651
October 10, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On April 21, 1972, Administrative Law Judge'
Max Rosenberg issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supplement to exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and the
supplement thereto and has decided to affirm the rul-
ings, findings,' and conclusions of the Administrative
Law Judge and to adopt his recommended Order.
Contrary to our dissenting colleague, we would
find that the Respondent violated Section 8(a)(3) and
(1) of the Act by discharging employees Larson and
Eady.
. Concerning Larson's discharge, the record,
which is more fully set forth by the Administrative
Law Judge, indicates that Larson was active on behalf
of the Teamsters Union until December 1970, at
which time he became actively involved in District
50's organizing campaign. Larson signed a District 50
card in December 1970, solicited other employees to
do the same, and wore a District 50 patch from Feb-
ruary 24, 1971, until he was discharged on April 23,
1971. The day before his discharge, Larson, upon in-
forming his supervisor that his driver's license had
been revoked, was told to finish his shift by working
on the dock. The following day, Larson was again told
by the Respondent's terminal manager to continue
working on the dock while the manager thought about
the situation. Later that day, Larson was terminated
despite his offer to work as a warehouseman on the
dock. He was later refused reemployment when he
answered the Respondent's advertisement which
sought a warehouseman. Contrary to the Respon-
1 The title of "Tnal Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 In adopting the Decision of the Administrative Law Judge we hereby
correct the inadvertent typographical error that employee Sherrill j oined the
Union in November 1971 when the record indicates that Sherrill joined the
Union in November 1970.
dent's assertions that it had a hard and fast rule
against the transfer of employees to lesser paying
jobs, the record further reveals that in 1969 the Re-
spondent granted the request of a supervisor on the
dock to transfer to his former, lower paying, truck-
driving job and in mid-1970 the Respondent again
breached its policy by granting the request of another
supervisor to transfer for health reasons to the posi-
tion of a gate guard. Additionally, in his uncontradict-
ed testimony, Larson named six former employees
who had been rehired by the Respondent. Lastly,
Frederickson, Respondent's president, who did not
specifically deny Larson's assertions, acknowledged
that even after January 26, 1970, when the aforemen-
tioned non-rehire policy of the Respondent was in
effect,'exceptions could be made to the rule. In view
of the foregoing, contrary to our dissenting colleague,
we agree with the Administrative Law Judge that the
Respondent has not maintained and enforced a rigid
policy of terminating employees rather than demoting
them or refusing to rehire them after a break in
service. Accordingly, we find that Larson's discharge
violated Section 8(a)(3) and (1) of the Act.
Concerning the discharge of employee Eady, the
record, which again is more fully set forth by the
Administrative Law Judge, indicates that the Respon-
dent was well aware of Eady's union affiliation and
activities. Indeed, our dissenting colleague agrees that
the Respondent violated Section 8(a)(1) of the Act by
asking on its application form whether Eady was a
union member, by Supervisor Long's interrogation
concerning Eady's union affiliations, by Supervisor
Howie's interrogation and subsequent warning con-
cerning Eady's union badge, by Supervisor Fun's in-
terrogation concerning Eady's solicitation of
authorization cards, and by Supervisor Fun's threat
that Eady would be summarily discharged for enlist-
ing union membership.
In finding that the Respondent violated Section
8(a)(3) by discharging Eady, we are aware of the nota-
tions about faulty work and conduct which were al-
legedly in Eady's personnel file but note that such
entries were not made until Eady' s union activities
became prominent. Although the Respondent intro-
duced into evidence "Over, Short and Damage Re-
ports" to justify Eady's discharge, many of the reports
attributed the responsibility for such damage to an
employee other than Eady. Moreover, Eady was nev-
er shown the aforementioned damage reports and
other men working on the dock had as many, or per-
haps more, of such reports in their files . Lastly, al-
though Dock Supervisor Fun testified that Eady
failed to report anticipated absences on three to five
occasions, only one of the Respondent's records indi-
cates that Eady neglected to report an absence. In
these circumstances and in light of the Respondent's
199 NLRB No. 82
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foregoing demonstrated animus with respect to the
union affiliation and activities of employee Eady, we
agree with the Administrative Law Judge that Eady
was discharged on April 5, 1971, not for work insuffi-
ciencies but because he was a known union adherent.
Accordingly, we conclude that Eady's discharge was
discriminatorily motivated and violative of Section
8(a)(3) and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Fredrickson Motor Ex-
press Corporation, Charlotte, North Carolina, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in said recommended Order.
CHAIRMAN MILLER , dissenting in part:
forklift and misdirect and mishandle freight. In the
face of this undisputed evidence, it cannot fairly be
said that the Employer was seizing upon an error as
a pretext in order to discharge him for union activity.
Instead, the record shows that Respondent gave him
several opportunities to improve his working habits,
and, when he failed to correct the very habits about
which he was warned, Respondent discharged him. In
these circumstances, I do not find that the evidence
justifies the conclusion that the real reason for his
discharge was union activity. I therefore dissent from
the 8(a)(3) finding with respect to his discharge.
In all other respects, I concur in the findings of
my colleagues.
3 Although Larson named six former employees who had been rehired, it
is clear that these rehires took place prior to January 1970, and that the policy
has not been breached since that time.
Unlike my colleagues, I cannot agree that Re- TRIAL EXAMINER'S DECISION
spondent discharged Don Larson and Richard Eady
because of their union activities in violation of Section
8(a)(3) of the Act.
The record clearly establishes that at the time of
Larson's discharge the Company had in effect a poli-
cy prohibiting the rehire of terminated or discharged
employees. There is no evidence to establish that this
policy was ever breached after it was firmly estab-
lished in January 1970.'
Nor does the evidence reflect that the Company's
refusal to demote rather than discharge Larson was
discriminatorily motivated. Larson was employed as
a driver. He lost his license for drunken driving and
speeding and consequently was disqualified to per-
form his duties as a driver for 3 years. His situation
was considerably different from that of the long-term
employee whose health required that he be given a less
onerous position, and who had, prior to the
Respondent's January 1970 policy, been demoted
rather than terminated. This humane treatment of an
employee with health problems does not establish a
precedent requiring Respondent to find work for em-
ployees who, through their own negligence, can no
longer perform the tasks for which they were hired.
Nor does the fact that they choose to participate in
union activity give them the right to favored treat-
ment. I see no evidence in the record that Larson was
discriminatorily treated and accordingly would find
no violation of Section 8(a)(3) of the Act arising out
of his termination.
Richard Eady admitted that he was warned on
several occasions about his poor working habits. He
was also warned about using excessive speed in the
operation of his forklift and mishandling freight. De-
spite these warnings, Eady continued to speed on the
STATEMENT OF THE CASE
MAX ROSENBERG, Trial Examiner: This case, with all
parties represented, was tried before me in Charlotte, North
Carolina, on October 26, 27, 28, and 29, 1971, on an
amended complaint of the General Counsel of the National
Labor Relations Board and an amended answer filed there-
to by Fredrickson Motor Express Corporation, herein
called the Respondent.' At issue is whether Respondent
violated Section 8(a)(1) and(3) of the National Labor Rela-
tions Act, as amended.
A brief has been received from the General Counsel
which has been duly considered.
Upon the entire record made in this proceeding, in-
cluding my observation of the witnesses who testified, I
hereby make the following:
I FINDINGS OF FACT AND CONCLUSIONS
Respondent, a motor carrier, is a North Carolina cor-
poration with terminals located in Charlotte, Asheville,
Hickory, and King's Mountain, where it is engaged in the
trucking business. During the annual period material to this
proceeding, Respondent transported freight valued in ex-
cess of $50,000, which originated at various points in North
Carolina, to points outside that State and , during the same
period, Respondent transported freight valued in excess of
$50,000 from points outside the State of North Carolina to
locations within that State. The complaint alleges, the an-
swer admits, and I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
1 The complaint, which issued on September 23, 1971 , is based upon
charges filed and served on January 21, 1971, February 8, 1971, March 11,
1971, March 29, 1971, May 5, 1971, and August 9, 1971.
FREDRICKSON MOTOR EXPRESS CORPORATION 559
II. THE LABOR ORGANIZATION INVOLVED Respondent on July 29, 1970, he was required to fill out an
International Union of District 50, Allied and Techni-
cal Workers of the United States and Canada, herein called
the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent independently
violated Section 8(a)(1) of the Act by restraining, coercing,
and interfering with the rights of its employees guaranteed
under Section 7 of the Act. The complaint further alleges
that Respondent offended the provisions of Section 8(a)(3)
by discharging employees Murrey Sherrill on February 4,
1971, Marshall Ruple on March 2, 1971, Richard Eady on
April 5, 1971, Don Larson on April 23, 1971, and A. Dale
Robinson on July 14, 1971. Finally, the complaint charges
that Respondent committed violations of Section 8(a)(3) by
assigning more onerous duties to Don Larson on October
27, 1970, and to Harley Silver on February 8, 1971, because
they joined and supported the Union. Respondent denies
the commission of any labor practices proscribed by the
Act.
In early 1968, Local 61 of the Teamsters embarked
upon an organizational campaign among Respondent's
drivers and warehousemen at its various terminals. In con-
sequence of this campaign, Local 61 obtained a Board certi-
fication as the collective-bargaining agent for a unit of
employees at Respondent's Charlotte terminal on October
25, 1968, and was the recipient of another such certification
at Respondent's Canton and Asheville terminals on January
16, 1969. Commencing in February 1969, Respondent's su-
pervisors at various terminals indulged in a series of acts of
coercive interrogation and threats to employees designed to
chill their ardor for elected collective representation. This
conduct found its way into a complaint filed by the General
Counsel of the Board against Respondent which issued on
July 20, 1970. After a full hearing, and on June 8, 1971, the
Board entered a Decision and Order finding that Respon-
dent had violated Section 8(a)(1) of the Act by the foregoing
conduct.'
Meanwhile, after unsuccessful attempts to negotiate a
labor agreement with Respondent, Local 61 faded out of the
picture and, in October 1970, the Union entered upon the
scene . That Respondent was fully apprised of the activities
of alleged discriminatees Larson, Sherrill, and Silver on be-
half of Local 61 and subsequently the Union is evidenced
by three petitions which Sherrill personally mailed to Re-
spondent on October 27, November 17, and November 23,
1970. These petitions recited that the employees whose names
appeared thereon had actively supported Local 61
and that they intended to engage in other concerted, pro-
tected activities in the future.
Even before the Union' s campaign got off the ground,
Respondent manifested its opposition to unionization in a
coercive and restraining manner. Harley Silver credibly tes-
tified and I find that, when he obtained employment with
application form which contained the question "Give the
name of any labor organization of which you are a mem-
ber."3 On the same day, Silver conversed with Harry Long,
manager of the Charlotte terminal . During the colloquy,
Long inquired whether Silver was a member of any labor
organization and, when Silver replied in the negative, Long
sought Silver's opinion about unionization . Silver re-
sponded that "if you have one, okay; and if you don't,
okay." Long then asked whether Silver was aware that "the
unionjust about broke" several large trucking companies in
the area, and Silver stated that he was not. Long continued
that "Mr. Fredrickson stated that there would never be a
union in his company" and Long cautioned Silver "not to
go out on the dock and get with the older men and get
involved in the union, that it would get me in trouble. "4 At
the conclusion of the conversation, Long advised Silver that
"it would be best if I would leave it [the union] alone."
Arvettra Christmas credibly testified and I find that,
when he was employed by Respondent in August 1970,
Terminal Manager Long instructed Christmas "that if
someone would approach me about the union for me to
come and tell him about it; or who they were."
On the basis of the foregoing credited testimony, I
conclude that Long's interrogation of Silver regarding his
union status and union sympathies, Respondent 's question
on the application form regarding union membership,
Long's conveyance of Fredrickson's threat that "there
would never be a union in his company," and Long's warn-
ing that Silver would find himself in "trouble" if he engaged
in union activities, violated Section 8(a)(1) of the Act. I
further conclude that Long's instruction to Christmas that
the latter report the names of any employees who solicited
his union membership intruded upon rights guaranteed in
Section 7 of the Act and was violative of Section 8(a)(1).
Howard Carr testified without contradiction and I find
that, on or about February 15, 1971, he had a conversation
with Foreman Joe Howie at the Charlotte terminal. Howie
noticed that Carr was wearing a union decal on his clothing
and inquired about the inscription on the badge. Carr invit-
ed Howie to read the emblem. After perusing the inscrip-
tion, Howie noted that he had never heard of the Union and
remarked, "if you are going to join a union, join something
worth joining." Howie then asked whether "this union was
going to get up anywhere." Carr answered that "maybe it
was dust a chance but I was willing to take it." Carr further
testified that, a few days after he began wearing the union
decal, Foreman Ted Bishop approached and observed the
insignia.5 Bishop thereupon inquired, "you know what that
3 According to Respondent 's Vice President Fredrickson , this question was
not removed from the application "until the first part of 1971. " Respondent's
Treasurer Moose placed this occurrence on January 1, 1971.
4 Silver's testimony in this connection stands uncontroverted.
5 At the hearing, Respondent declined to stipulate that Joe Howie and Ted
Bishop were supervisors within the purview of the Act However, Terminal
Manager Harry Long testified and I find that Howie's job was that of a
"supervisor," and that he was so held out to the employees by Long himself.
Long further reported that Howie directed the work of eight or nine employ-
ees, performed no manual labor, possessed the authority to discipline em-
ployees under him, and effectively recommended the hire of employees and
the granting of wage increases to them Long also testified that Howie and
2 Fredrickson Motor Express Corporation, 190 NLRB No. 142. I have, at the Bishop had the same duties and responsibilities. On the basis of the forego-
unopposed request of the General Counsel, taken judicial notice of that mg, I find and conclude that both Howie and Bishop possessed and exercised
proceeding . Continued
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
means , don't you?" When Carr sought out the meaning of
the remark, Bishop replied that "that [the decal] was the
main reason why we hadn't got a raise and that was going
to be the main reason why we weren't going to get one."
When asked, during his examination, whether he had made
the foregoing statement to Can, Bishop replied, "Not to my
knowledge." Can impressed me as a candid witness and I
credit his testimony. Accordingly, I conclude that Respon-
dent violated Section 8(a)(1) by Howie's coercive interroga-
tion of Can concerning his union inclinations, and by
Bishop's threat to Can that the latter's union activities had
caused a delay in the receipt of wage increases.
Employee James Taylor testified that, sometime in Jan-
uary 1971, he had a conversation with Dock Supervisor Fun
at the Charlotte terminal during which Fun inquired wheth-
er Taylor belonged to the Union. Taylor replied in the nega-
tive. In his testimony, Fun denied that he engaged in this
act of interrogation. As indicated hereinafter, Fun did not
impress me with his candor. I therefore credit Taylor's testi-
mony and conclude that, in the context of this case, Fun's
interrogation of Taylor was offensive to the provisions of
Section 8(a)(1).
In the middle of January 1971, Respondent's Vice Pres-
ident Bill Fredrickson delivered a series of speeches at vari-
ous terminals, admittedly occasioned by the advent of the
Union's organizational efforts. Employee Tony Icard re-
called that, on or about January 14, 1971, Fredrickson ad-
dressed most of the employees at the Hickory terminal. In
the course of his speech, Fredrickson observed that the
Union "didn't have much to offer as far as benefits go, that
we had better benefits than some of the companies had to
offer; and he went on to say in giving his speech that if any
worker was caught participating in union activities that they
would be dismissed." According to Icard, Fredrickson did
not restrict this predicted disciplinary action to the conduct
of union activities on company time. Fredrickson further
stated that, if the Union was selected by the employees, he
would participate in contract negotiations but that "he
would not sign a contract in order to keep the union out."
Joe Seagle testified that, during the January 14 speech
at the Hickory terminal, Fredrickson reported that the Un-
ion was attempting to organize the employees and that they
could expect to be contacted by a union representative.
Fredrickson went on to state that "if we were caught talking
to anyone, to any one of the union representatives or car-
rying on union activities, we would be automatically dis-
charged." Seagle insisted that Fredrickson did not limit the
application of the proscription to worktime. Fredrickson
added that "they would not sign a contract and they
couldn't be forced to sign a contract." Seagle also reported
that management representatives Moose , Carter, and Con-
nor were present during the address.
Jerry Brandon recounted a speech which Fredrickson
made in mid-January 1971 at the King's Mountain terminal.
It is Brandon's testimony that, after alerting the men to the
fact that the Union was soliciting membership in quest of
exclusive representative status at the terminal, Fredrickson
the requisite Statutory indicia of supervisory authority, that they were super-
visors within the meaning of Section 2(11) of the Act, and that Respondent
was accountable for their actions and utterances.
warned that "if anyone was caught talking about the union
or anything that they were subject to dismissal." Once
again, Fredrickson made no mention of banning union ac-
tivities only on company time. Fredrickson further stated
that the union representatives "would tell you that the com-
pany would not see the cards that they, the cards that you
had signed, but he said that was not necessarily true."
Douglas Hollifield also heard Fredrickson's talk at the
King's Mountain terminal. Hollifield recalled that Fred-
rickson told the assemblage that the Union had embarked
upon an organizational campaign. Fredrickson commented
that Respondent's officials would view any signed authori-
zation cards before an election could be conducted among
the employees. Fredrickson continued that the Respondent
would oppose the Union by all legal means and that "any
man caught participating in union activities that it would be
grounds for dismissal." Fredrickson did not limit the fore-
casted disciplinary action to activities which took place only
on worktime.
During his visit to the stand, Fredrickson acknowl-
edged that he spoke to employees during January 1971 at
various terminals in which he informed them "that all other
matters not pertaining to work including the union that they
were not supposed to have any union activities on the job,
and that if they did, it was subject to dismissal." However,
Fredrickson denied that he proscribed the engagement of
union business on noncompany time, denied that he made
any reference to contracts or stated that he would not sign
a collective agreement, and denied that he told the employ-
ees he would see the union cards before the election. I do
not credit Fredrickson's denials . He testified that he deliv-
ered his speeches from written notes. Despite the fact that
these notes apparently were available to him, they were not
produced to fortify his testimony where it collided with that
of Taylor, Seagle, Brandon, or Hollifield. Moreover, while
Moose, Respondent's treasurer, was placed at the scene of
Fredrickson's speech at Hickory terminal, Moose was not
questioned about the contents of the speech and hence did
not corroborate Fredrickson. In sum, I conclude that Re-
spondent violated Section 8(a)(1) by Fredrickson's threats
that employees would be discharged for engaging in union
activities without regard to time and place, his threat that
Respondent would never negotiate or sign a contract with
the Union, and his further threat that Respondent would
learn the identity of union adherents because it would view
the cards offered to the Board in support of an election.
I turn next to a consideration of the alleged acts of
discrimination which the General Counsel claims Respon-
dent visited upon Murrey Sherrill, Don Larson, Richard
Eady, Marshall Ruple, A. Dale Robinson, and Harley Sil-
ver.
Murrey Sherrill was employed by Respondent at the
Charlotte terminal in September 1959 and worked as a
truckdnver until his discharge on February 4, 1971. Sherrill
had been active in the organizational campaigns conducted
6 Even were I to find that Fredrickson restricted punishment for union
activities to those occurring on company time , I would nevertheless find this
threat unlawful in fight of my conclusion with regard to the discharge of
Murrey Sherrill that Respondent's no-solicitation rule promulgated in
Fredrickson's speeches was discnminatonly and disparately applied and
enforced
FREDRICKSON MOTOR EXPRESS CORPORATION
by Local 61 of the Teamsters and, in November 1971, he
joined the Union.7 Thereafter, he solicited the signatures of
fellow employees on behalf of the Union, held meetings,
addressed employees at those convocations, and distributed
union literature. Sherrill testified that, on February 3, 1971,
while making a delivery to a customer, his truck was fol-
lowed for approximately 2 miles by Safety Director Gerald
Rogers. When Sherrill stopped at-the customer's premises,
Rogers approached and berated Sherrill for entering the
wrong gate, pointing out that a sign at the premises instruct-
ed the drivers to enter through the rear. Sherrill protested
that he did not see the sign, and Rogers acknowledged that
the placard was obscured by a parked car. Thereupon, Rog-
ers proceeded to criticize Sherrill because his truck was dirty
and a tail flap was missing. Sherrill retorted that he "didn't
want him [Rogers] bothering me like he did the last [Team-
sters'] campaign in `68; and he said that he would bother me
any time he pleased ...." Sherrill then stated, "I want you
to know now that I am in the process of getting cards
signed; I got cards signed in the previous campaign and I
am in the process again." It is uncontroverted and I find
that Rogers shot back, "Do you know Mr. Fredrickson said
in a previous meeting that he would fire any man for talking
union on company time." Sherrill requested Rogers to re-
peat the statement, and Rogers modified his comment by
stating that Fredrickson would discharge employees "for
promoting union on company time."
Sherrill further testified that he reported to work on
February 4 a bit late because of icy conditions on the road
and, as he proceeded to clock in, he was accosted by Termi-
nal Manager Long who instructed him to report to the office
of Everett Fredrickson, Respondent's president. Upon his
arrival, Sherrill was greeted by Fredrickson and Rogers.
Fredrickson asked Rogers to recount the events which had
transpired between Rogers and Sherrill the previous day.
Rogers related that he had informed Sherrill that Fredrick-
son had told the men on an earlier occasion that he would
discharge any employee "for talking on company time," at
which point Sherrill interjected to add that Rogers had actu-
ally used the phrase "talking union on company time."
Fredrickson turned to Sherrill and invited the latter to pre-
sent his version of the conversation, but Sherrill declined.
Rogers continued with his narrative and, when he had con-
cluded, Fredrickson asked Sherrill "was I getting cards
signed on company time, getting union cards signed on
company time." Sherrill replied that he did not know wheth-
er Fredrickson was privileged to pose such an inquiry, and
he thereupon placed a call to a Board agent to seek advice
as to whether he should answer the query. Following that
conversation, Fredrickson repeated the question and Sher-
rill responded, "Yes, on the clock and off the clock." Fred-
rickson observed that he was not interested in "off the clock,
only on the clock," and he instructed Long to terminate
Sherrill's employment. While the discharge action was being
consummated, Rogers remarked that Sherrill "had done a
real good job and said that I has a perfect safe-driving
record." Long then handed Sherrill a termination slip which
recited that Sherrill had been separated for engaging "in
7 In fact, Sherntl was a member of the Teamsters ' bargaining committee
which met on numerous occasions with officials of the Respondent . He also
served as a shop steward for that labor organization.
561
union activities on company time by his own admission."
Long testified that Sherrill had been cautioned on sev-
eral occasions about speaking to fellow employees during
working time prior to his discharge and that the termination
had resulted from a breach of a no-solicitation rule which
Respondent had promulgated in 1968 and reiterated in Jan-
uary 1971 debarring solicitation for any purpose, union or
otherwise, dung working hours , and other witnesses called
by Respondent repeated this theme .8 I find that Sherrill, by
his own admission , solicited the membership of his fellow
employees in the Union on company time despite the exist-
ence of a no-solicitation rule. However, I am persuaded
that his discharge was nevertheless violative of Section
8(a)(3) because the rule which formed the basis for his sep-
aration was disparately and discriminatorily enforced.
Thus, employee Woodrow Turner testified and I find that,
in November 1970, Supervisor Hickey solicited a contribu-
tion from Turner for the United Givers' Fund on worktime
and President Everett Fredrickson testified that such solic-
itations were a "must" at his installations , without re-
striction as to when the solicitations were to be made. I find
that, shortly before Christmas in 1970, Turner received per-
mission from Terminal Manager Long to take up a collec-
tion for an individual named Regoldie who had been
discharged , and that Turner obtained contributions on
company time from Supervisors Hickey and Keever.
Again, employee Arvettra Christmas testified without
contradiction and I find that Supervisor Sam Thompson
openly conducted a baseball pool on working time during
the 1970 World Series. He also averred that, around Christ-
mas in 1970, he vended some church tickets during working
hours to Supervisors Thompson and Herman Fun. Indeed,
Furr conceded that he purchased a ticket on that occasion
and that approximately six others were sold . Employee
Claude Thomas testified that a junkman openly solicited the
sale of materials on company time as late as September 1971
at which time Supervisor Reed Brown made a purchase.
Thomas also recounted and I find that Supervisors Hickey
and Keever, as well as Thomas , openly purchased metal
social-security cards at the Charlotte terminal during work
hours . Numerous other instances of such solicitation was
reported in the record, and yet, so far as appears, not a
single employee-solicitor was discharged for engaging in the
foregoing activity, and not a single employee was terminat-
ed for making a purchase on working time.
Accordingly, I conclude that, although the no -solicita-
tion rule promulgated in January 1971 was promulgated as
a general rule against solicitation, it was invalidly applied
and enforced only to Union solicitation while Respondent
permitted extensive solicitation for various social and chari-
table purposes. I therefore find and conclude that the pro-
mulgation of the rule offended the provisions of Section
8(a)(1) of the Act.9 I further conclude that the enforcement
of the rule against Sherrill with the consequent causation of
his discharge of February 4, 1971, was violative of Section
8(a)(3).1° I also conclude that Safety Director Rogers Viola-
8 Respondent 's Vice President Bill Fredrickson conceded that the rule was
first promulgated only after the Teamsters embarked upon its organizational
campaign in 1968, and was again reintroduced in his speeches in January
1971 only after the Union commenced to organize the employees.
9 Halhburton Co, 168 NLRB 1091.
10 Standard-Coosa - Thatcher Co., 85 NLRB 1358.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ted Section 8(a)(1) by threatening Sherrill with discharge
pursuant to the invalid no-solicitation rule.
Donald Larson was hired in September 1966. He was
employed as a truckdriver and dockworker until his termi-
nation on April 23, 1971. Larson was one of the most active
adherents of the Teamsters Union, as Respondent well
knew, for Larson personally mailed three petitions to
Respondent's officials in October and November 1970
which recited that the "undersigned employees of Fredrick-
son Motor Express [which included Larson] are involved
with union activity, and have been in the past, and intend
to do so in the future." In December 1970, Larson became
active in the Union's organizational efforts when he signed
an authorization card and solicited the membership of his
fellow employees. On February 24, 1971, Larson com-
menced to wear a union badge on his person while at work
and persisted in this activity until the date of his discharge.
Larson testified that, after he mailed the petitions to
Respondent, his hours of work were changed from the 8:30
a.m. to 6 p.m. shift to the 10 a.m until 8 p.m. trick, in
consequence of which he was assigned to a longer route
which entailed more stops for the delivery of freight. He also
testified that, after the mailing, he no longer was allowed to
leave work early at the end of his shift.
On April 21, 1971, Larson informed a supervisor that
he had an appointment away from the terminal on the
following day and that he would be absent for a certain
period of time . The nature of this appointment, which was
not immediately disclosed to the supervisor, involved a
court appearance in which Larson was charged with driving
under the influence of alcohol and speeding. On the af-
ternoon of April 22, Larson was found guilty of the offenses
charged and his driver's license was suspended. Late that
afternoon , Larson returned to the Charlotte terminal where
he informed Assistant Terminal Manager Warren Hickey of
the events which had transpired that day. According to
Larson, Hickey "hummed and hawed" and finally directed
Larson to work on the dock until the end of the shift. The
following morning , April 23, Larson returned to work and
was told to toil on the dock. A short time later, Larson was
called to the office of Terminal Manager Harry Long. When
he arrived, Long stated that he observed a note on his desk
which indicated that Larson had been deprived of his
driver's license and Long inquired into the circumstances
surrounding this happenstance. Larson reported on the inci-
dent, after which Long commented "Well let me think
about it a while" and Larson returned to the dock. Later
that afternoon, Larson was recalled to Long's office where
the latter proffered Larson's termination slip and paycheck
and stated that "we don't need you any more, you are not
qualified for it."" Larson asked "why can't I work on the
dock? I will take a cut in pay," to which Long replied "No,
because you are hired as a driver." Larson protested that an
employee named Tracy Hunt had lost his license and had
nevertheless obtained employment on the dock thereafter.
Long retorted that he was unaware of such personnel ac-
tion, whereupon Larson left the terminal.
On May 17, 1971, while seeking employment, Larson
11 Under regulations applicable to common carriers, truckdnvers are dis-
qualified from performing driving tasks for a period of 3 years if their licenses
have been suspended.
noticed an advertisement in a local newspaper which had
been placed by Respondent and which sought the services
of warehousemen. Larson responded to the advertisement
and visited Long in quest of a job on the dock. Larson filled
out an application for employment which he handed to
Long. Long reviewed the document and commented,
"thank you for filling out an application, but we don't hire
former employees." According to Larson, he was aware that
five former employees, including Claude Thomas, were
reemployed by Respondent after a break in service . In this
connection, Thomas testified that he had been reemployed
after a break in service. And, James Reed testified that he
had been a supervisor of the loading dock at the Asheville
terminal in 1968 and 1969 and requested that he be allowed
to return to his former job of truck driving, a request which
was granted by Respondent.
In defense of its action in discharging Larson on April
23, 1971, Respondent asserted that company policy dictated
his separation after the loss of his license. Respondent's
President Everett Fredrickson testified that Respondent's
policy with respect to the transfer of employees to lesser
paying jobs in the event that the employees were in poor
health, injured, or lost their driving licenses, was to the
effect that no such transfer would be made because, in his
words, "We found that in the past that when we were doing
that, years ago, that this person became disgruntled because
of his cut in salary and the different type of work that he
had to do." According to Fredrickson, this policy had been
evolved approximately 3 or 4 years before Larson's termina-
tion. However, Fredrickson confessed that he was aware
that James Reed had been transferred in 1969 from a higher
to a lower paying job in direct contradiction to
Respondent's "established policy." Initially, he professed
that this personnel action did not offend the rule because
Reed was not a supervisor. On further examination, Fred-
rickson admitted that Reed "acted as a supervisor in load-
mg out of some of the runs in Asheville" but he "asked to
be demoted" because he "did not want the responsibility."
In addition, Fredrickson acknowleged that in mid-1970 Otis
Brandon was transferred from the position of a supervisor
to that of a gate guard because of reasons of health, again
in contravention of Respondent's policy. According to
Fredrickson, the variation of the rule constituted a qualifi-
cation upon its rigid application because "That is one of the
things that you have to consider in business."
Unlike Respondent's alleged policy with respect to
transfers, Fredrickson testified that Respondent promulgat-
ed a written rule against the reemployment of employees
who were discharged or had resigned after January 26, 1970.
Such a rule appears as an amendment to an employees'
handbook. Here again, Fredrickson testified initially that
his terminal managers did not deviate from this policy.
However, he finally admitted that the managers did not
depart from the rule after January 26, 1971 "until they
brought it to my attention."
After a careful review of the evidence on this issue, I
am persuaded and find that Respondent terminated Larson
on April 23, 1971, not because of its policy of refusing to
transfer an employee from a higher to a lower paying posi-
tion and refusing to rehire employees who had previously
been discharged, but because Larson was a known , active
union adherent. I have heretofore found that in October
FREDRICKSON MOTOR EXPRESS CORPORATION
and November 1970, Larson personally mailed to Respon-
dent a list of employees ' names , including his own, who
were active on behalf of the Teamsters , with the notation
that he and the employees "are involved with union activity,
and have been in the past , and intend to do so in the future."
In December 1970, he joined the Union and solicited on its
behalf . Beginning on February 24, 1971 , he openly wore a
union badge while at work . While it is true , and I so find,
that Larson lost his license on April 23 , 1971, and was
disbarred from driving a common carrier for a period of 3
years , Larson requested a job on the dock and volunteered
to take a pay cut . If Respondent had indeed maintained and
enforced a rigid policy of terminating employees rather than
demoting them , or refusing to rehire them after a break in
service ,. Respondent 's discharge of Larson would have been
completely privileged . However , Fredrickson himself testi-
monially unfolded how the policy was observed in the
breach . Accordingly , I find and conclude that Respondent
discharged Larson because of his adherence to the Union
and that Respondent thereby violated Section 8(a)(3) of the
Act.
The complaint also alleged that Respondent violated
Section 8(a)(3) by assigning more difficult and onerous du-
ties to him on and after October 27 , 1970, because of his
engagement in union activities . I am not convinced that the
General Counsel has established this allegation by the re-
quisite .proof. Larson testified that he had taken over the
route in late October because the incumbent driver , Sherrill,
had been assigned to fill the place of a driver on another
route who had been discharged . Larson claimed that the
number of stops increased on the new run, but he acknowl-
edged that he never complained of his transfer to manage-
ment and, indeed, had had his routes changed on several
occasions prior to his engagement in activities on behalf of
labor unions . I shall therefore recommend that this allega-
tion in the complaint be dismissed.
A companion allegation is contained in the complaint
regarding the treatment which Harley Silver received at
Respondent 's hands after he commenced to wear a union
decal at work on February 8 , 1971. Silver had signed a union
designation in November 1970, solicited other employees to
join , attended union meetings , and advertised such invoca-
tions . On February 8, 1971, he began to wear a union patch
on his clothing while on duty . Silver testified that , between
March 1 , 1971, and March 15, 1971, when he was dis-
charged, he was assigned to haul loads of baby food and
wax approximately two to three times a week , whereas prior
to his display of the decal he was required to deliver only
one such load and in that case he was afforded a helper.
According to Silver, it was more arduous to handle this type
of cargo because it was not palletized. However , dispite his
assertion, records from which Terminal Manager Long tes-
tified and which ran through March 5 , 1971, failed prepon-
derantly to substantiate this claim and the General Counsel
made no effort to obtain records from Respondent which he
contended contained the pertinent information . I therefore
conclude that the General Counsel has failed to establish
that Respondent violated Section 8(a)(3) by any conduct
directed toward Silver.
Richard Eady entered Respondent's employ on De-
cember 14, 1970, and worked as a forklift operator and
563
checker on the dock at the Charlotte terminal until he was
discharged on April 5, 1971. Eady executed a union authori-
zation card shortly after he commenced working for Re-
spondent and solicited union membership among his fellow
employees . During the last 2 weeks in February 1971, he
began wearing a union badge on his hat while at work.
On the date of his hire, Eady was handed an applica-
tion for employment bearing the question on the front page
which asked, "Give the name of any labor organization of
which you are a member ." Eady did not respond to the
question . The following day, Terminal Manager Harry
Long inquired whether Eady had ever belonged to a labor
organization and Eady answered in the negative . In early
February 1971, Eady entered into a conversation with Fore-
man Joe Howie . Eady's testimony is undenied and I find
that, on this occasion , Howie asked the former "What are
you wearing that union badge for?" and warned "You
know, we are writing these names down ." Eady further
testified and I find that , on February 18, 1971, Dock Super-
visor Herman Fun told Eady that Fun had been informed
by two employees that they had observed Eady with a white
card, the same color as the Union's authorization card, in
Respondent 's trailer . Fun added that "I don't know what
you were doing or what you intended to do ." Eady ex-
plained that he merely attempted to give another individual
a pencil or piece of chalk to sign the card . Fun then cau-
tioned Eady that "the next time this happens there will be
an automatic dismissal ," and no mention was made of solic-
iting on company time in this connection . Fun hinted to
Eady that the man whom Eady had solicited might have
been a company decoy or policeman . At this point, Fun
inquired whether Eady had anything further to say, and
when Eady replied that he did not , Fun concluded the
conversation by advising that "I will have you in here next
month and then we will see if you have anything to say."
Eady testified that, in the last week of February 1971,
he was approached by Fun who was carrying an empty box
and a piece of paper . Fun stated, "this is the man that was
wearing the badge, this doesn 't mean anything to me," and
Fun discarded the box and paper.
On April 5, 1971, Eady was called into Long's office
where he was discharged for a variety of reasons , including
mistakes in his work and failing to telephone Respondent
when he intended to absent himself from duty. During his
examination , Eady candidly admitted that on two or three
occasions during his employment, he had misrouted freight
to customers and had operated his forklift too speedily, in
consequence of which he was spoken to by Fun and other
supervisors . However , Eady adamantly denied that he had
failed to call in, either individually or through his wife and
father-in-law , denied that he had committed any more work
infractions than other employees , and denied the commis-
sion of the entirety of the infractions which Respondent
attributed to him.
To support its claim that Eady was severed from its
employment rolls on April 5 for manifold mistakes and
misconduct , Respondent relied principally on the testimony
of Fun. Fun claimed that Eady was selected for discharge
because of a multitude of errors in checking and routing
freight , excessive breakage of freight, negligent operation of
his forklift, and failure timely to report his absences from
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work. Furr then spun off a series of incidents to justify his
claim. This endeavor proved abortive. Thus, regarding
Fun's contention that Eady damaged an inordinate amount
of freight, Respondent introduced approximately 14 "Over,
Short and Damage Reports." At the bottom of the doc-
ument appears the phrased question "Who Respon-
sible ." However, only four of these reports
attributed damage responsibility to Eady, and the question
on two others are unanswered. Other formal and less formal
reports on Eady's derelictions were also introduced into
evidence. However, although they bear the notation that
Eady was responsible, Fun admitted that Eady was never
shown these documents. Fun also testified that Eady failed
to report anticipated absences on three to five occasions.
However, Respondent's records reveal that only three nota-
tions regarding absences appear in Eady's personnel file, the
only one discloses that Eady neglected to report the absence.
Regarding other aspects of Eady's work perform-
ance, Fun admitted that Eady's work tonnage was above
average. Moreover, Fun conceded that other men on the
dock had personnel files which contained as many or more
notations as did Eady's, and other men had failed to report
absences without suffering the pain of discharge. Finally,
Fun acknowledged that he did not begin to place warning
and reprimand notations into Eady's file until February
1971 at a time when Eady became prominent in the Union's
campaign.
As I have heretofore found, Eady commenced wearing
a union badge on his hat while at work early in February
1971 and supervisor Howie noted this display, asking
"What are you wearing that union badge for?" and warning
that "You know, we are writing these names down." I credit
Eady's testimony and find that, on February 18, 1971, Fun
told Eady that two employees had seen Eady in a trailer in
possession of a card which bore the same color as a union
authorization designation and stated that "I don't know
what you were doing or what you intended to do ... the next
time this happens there will be an automatic dismissal."
Fun also remarked that "I will have you in here next month
and then we will see if you have anything to say." I also find
that, at the end of February, Fun stated to Eady that "this
is the man that was wearing the badge." In light of the
foregoing, the fact that Respondent did not begin to make
notations about faulty work and conduct in Eady's person-
nel file until he exhibited his support of the Union, and
Respondent's failure cogently to support its claim that Eady
had committed extensive work errors, I am persuaded and
find that Respondent discharged him on April 5, 1971, not
because of any work insufficiencies but because he was a
known union adherent. I therefore conclude that, by termi-
nating Eady, Respondent thereby violated Section 8(a)(3) of
the Act. I also conclude, based upon Eady's testimony
which I credit, that Respondent violated Section 8(a)(1) by
posing the question on its application form to "Give the
name of any labor organization of which you are a mem-
ber"; by Long's interrogation of Eady on December 15,
1970 regarding the former's union affiliations; by Howie's
interrogation of Eady concerning the purport of the union
badge which he sported on his hat and Howie's comment
that Respondent maintained a list of the names of employ-
ees who openly supported the Union; and by Fun's interro-
gation of Eady concerning his union solicitations and his
threat that Eady would be summarily discharged for enlist-
ing union membership without regard to time and place.
Marshall Ruple was hired by Respondent on Septem-
ber 11, 1970 as a truckdriver and dockworker at the Char-
lotte terminal. He testified that in October 1970 he signed
a union authorization card and solicited the union member-
ship of his fellow employees. In February 1971, he openly
displayed a union badge on his work clothes. It is undisput-
ed on this record and I find that, around February 1, 1971,
Ruple engaged in a conversation with Warren Hickey, the
assistant terminal manager and an admitted supervisor.
During the colloquy, Hickey cautioned that Ruple had
"better be careful and watch my step and start picking up
a bit" because "they were watching me and keeping notes
on me; every time I did something wrong, they were going
to take a note on me, and when it came down to a trial, in
court, that the Labor Board would laugh at me."
Ruple further testified that, on February 12, 1971, Her-
man Fun, Respondent's dock supervisor, approached and
asked Ruple about the union badge which he was wearing
on his jacket. Fun commented that "he seen a few other
people around the terminal wearing them, and he wanted to
read mine; and he read it, and he said, `you know you are
on the s... list already and you ought to be playing ball on
our time [sic] instead of the other team."' Employee Rich-
ard Eady, who was present during this exchange, corrobo-
rated Ruple's testimony. In his testimony, Fun initially
claimed that he did not indulge in any conversation with
Ruple on February 12, 1971. Later, Fun changed tack and
allowed as how he did speak with Ruple at this time. How-
ever, Fun contended that the discussion related to Ruple's
work performance as evidenced by a posted tonnage list
which, according to Fun, was "a list pertaining to getting
on the 'S' list or the 'low' list ...... Fun asserted that Ruple
,.was below average all the time" in discharging freight. Fun
then admitted that Ruple "part of the time ... seemed to
work his units proper and at the right pace . . . ." When
asked whether he told Ruple to get "on our side," Fun
stated "No, sir, I said, `let's get on the ball, let's go." Fun
did not impress me with his candor as a witness, and I credit
the testimony of Ruple, as corroborated by Eady, and find
the facts as Ruple reported them on the stand. Accordingly,
I conclude that, by Fun's actions and comments, Respon-
dent thereby violated Section 8(a)(1) of the Act.
On February 17, while he was servicing a truck which
belonged to a fellow employee, Gerald Rogers,
Respondent's safety director, walked up to Ruple and in-
quired as to how the latter was getting along. Ruple replied
that he was doing fine, at which point Rogers glanced up at
the dome light in the cab and remarked that the plastic
dome light cover had been broken out. Rogers instructed
Ruple to park the truck and remain with the vehicle until
the former returned from a visit to the office of Harry Long,
Respondent's terminal manager . A few minutes later, Rog-
ers summoned Ruple to Long's office. When they arrived,
Rogers stated that the light cover had been broken, spoke
about the cost of replacing it, and asked whether Ruple
knew who had damaged the equipment. Ruple expressed his
ignorance as to the cause of the damage and denied that he
was involved. Long broke into the conversation with the
FREDRICKSON MOTOR EXPRESS CORPORATION
comment that he had a note in his desk drawer which con-
tained the information that "a driver had reported you [Ru-
ple] for breaking out the dome light lens in his truck." Ruple
vehemently denied that he had engaged in this act and
branded the informant, whom he believed to be Thomas
Metcalfe, a liar. Ruple was then sent back to work.
On the evening of March 2, Ruple returned from a run.
After parking his vehicle, Truck Supervisor Don Keever
informed Ruple that Long wished to see him. Accompanied
by Keever, Ruple entered Long's office where the latter
immediately handed Ruple his paycheck and a dismissal
slip which recited "fired for destruction of company proper-
ty." Thereupon, Ruple left Respondent's employ. Accord-
ing to Ruple, he was involved in the breakage of a dome
light only on one occasion during his employment. In that
instance, a cover had already been broken and the jagged
edges remained in the receptacle. Ruple removed these
edges.
Thomas Metcalfe testified that he had a conversation
with Terminal Manager Long relative to broken dome lights
in February 1971. On that occasion he was called into
Long's office where, in the presence of Safety Director Rog-
ers, he was asked what he knew about the breakage of dome
light covers in the vehicles. Metcalfe replied that he was
aware that approximately seven had been damaged but pro-
fessed ignorance as to the men responsible for the damage.
Long and Rogers stated that they had been apprised by
some unidentified employee that Metcalfe possessed the
name of the guilty party or parties. At his juncture, Metcalfe
remarked "just reach up and get a name," adding "You
[Long] could have done it, Gerald Rogers could have done
it; I could have done it, or anybody could have ... even
Marshall [Ruple] could have ...... However, Metcalfe ada-
mantly insisted that he did not suggest that Ruple was ac-
countable for the breakages.
Employee Lee Mabry, a witness called on behalf of
Respondent, testified that he noticed that some dome light
covers had been broken in a number of Respondent's ve-
hicles including. the one assigned to him. However, Mabry
indicated that he gained this intelligence approximately 4 or
5 months prior to the hearing herein , which would have
placed his awareness of this condition either in June or July
1971, more than 3 months after Ruple's discharge. Mabry
went on to state that he thereafter had a conversation with
Metcalfe and the latter volunteered the information that,
during a trip in one of Respondent's pickup trucks with
Ruple, the men reached their destination and Ruple began
to fill out a delivery form on a clip board. Ruple thereupon
knocked the dome light out with the clip board and ex-
claimed, "Now I can see, I cleaned it." Upon receiving this
information, Mabry reported it to a few employees.
Long testimonially recounted that he and Rogers joint-
ly made the decision to discharge Ruple on March 2, 1971
"For breaking the dome lights out of a pickup truck." Long
related that Rogers visited Respondent's shop and noticed
that some dome lights had been fractured. Rogers asked
Ruple whether the latter knew who had broken the equip-
ment and Ruple replied that he did not know. Ruple was
summoned to Long's office and Ruple again denied that he
had broken the light covers and denied that he was aware
of the identity of any employee who had done so. According
565
to Long, Rogers continued his investigation and found that
Metcalfe's vehicle had also been damaged. Metcalfe was
called to Long's office and interrogated about the matter.
Metcalfe thereupon recounted that he had delivered a load
to a customer with Ruple during the course of which Ruple
broke the dome cover in Metcalfe's truck. Metcalfe also
recalled that Ruple had removed the cover from Ruple's
vehicle which already bore a small hole. Ruple was then
brought to Long's office where the former admitted break-
ing the cover in his cab and volunteered to pay for the
damage. Subsequently, Long learned that approximately 17
other vehicles contained broken dome covers and, because
Ruple drove several of Respondent's vehicles, Long sur-
mised that Ruple was the culprit. On March 2, 1971, Long
and Rogers terminated Ruple.
On the record before me, I am convinced and find that
Respondent discharged Ruple on March 2 because of his
engagement in activities on behalf of the Union, and that
its claimed assertion that Ruple was terminated because he
had broken some dome light covers was merely a pretext to
cloak its act of illegality. As previously chronicled, Ruple
had joined the Union in October 1970 and, commencing in
February 1971, he openly wore a union decal on his jacket
while at work. That Respondent was aware of Ruple's union
activities is evidenced by his uncontroverted testimony that,
about a month before his discharge, Supervisor Hickey
warned him that he had "better be careful and watch my
step and start picking up a bit" because Respondent's offi-
cials were "watching me and keeping notes on me; every
time I did something wrong, they were going to take a note
on me, and when it came down to a trial, in court, that the
Labor Board would laugh at me." I am fortified in this
conclusion by the credited testimony of Ruple and Eady
that, on February 12, Dock Supervisor Fun noticed Ruple's
union decal, inspected it, and cautioned that Ruple was "on
the s... list already and you ought to be playing ball on our
[team] instead of the other team." Long claimed that he
learned of Ruple's breakage of a dome light from Metcalfe,
although the latter steadfastly insisted that he did not place
the onus of responsibility on Ruple when Metcalfe talked
with Long and Rogers. Moreover, Mabry asserted that he
learned from Metcalfe that Ruple had broken a light cover,
but the record fails to establish that Mabry conveyed this
intelligence either to Long or Rogers. In sum, I conclude
that, by discharging Ruple on March 2, 1971, Respondent
violated Section 8(a)(3) of the Act. I also conclude that
Respondent violated Section 8(a)(1) by Assistant Terminal
Manager Hickey's threat made to Ruple that Respondent
was monitoring his conduct and taking notes thereof in
order to justify his discharge, and by Fun's comment about
the s... list."
The essential facts surrounding the discharge of A.
Dale Robinson are not in substantial dispute and I find
them to be as follows. Robinson was hired by Respondent
in May 1967 as a truckdriver at the Asheville terminal and
was discharged on July 14, 1971. On October 13, 1970,
Robinson testified against Respondent in the previously
reported unfair labor practice proceeding in which the
Company was ultimately found guilty by the Board of vio-
lating the provisions of Section 8(a)(1) of the Act. In No-
vember 1970, Robinson joined the ranks of the Union,
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attended meetings , solicited membership, and distributed
literature. In late November or early December 1970, he
appended a union sticker to his personal truck which he
drove to the terminal each day. About this time, Robinson
told Supervisors Richard Ray, Whitey Rice, and S. J. Prin-
gle that he supported the Union. In the early part of 1971,
Robinson commenced to wear a union badge while at work.
Around June 15, 1971, approximately a week after the
issuance of the adverse Board decision adverted to above,
Robinson clipped a report of the decision out of a local
newspaper and posted it on the terminal bulletin board. He
then proceeded to fuel his tractor, at which juncture another
employee approached to announce that Supervisor Ray had
removed the article from the bulletin board. The following
day, Robinson asked Ray why the latter had taken down the
article. Ray replied that he did not know to whom it be-
longed. Robinson exclaimed that it was his property and
that Ray had no right to remove it.
During the course of his employment, Robinson, like
other drivers, made deliveries to customers on an unsche-
duled basis. On the morning of July 14, 1971, he reported
for work and was assigned to deliver a load of cargo to the
Southern Bell Telephone Company. When he arrived at
Bell's plant, he observed that a strike of Bell's employees
was in progress and a picket line of approximately 20 indi-
viduals was stationed at the main gate. As he drove his
vehicle toward the gate, he became surrounded by 10 to 15
strikers who shouted "lock her down right there, Buddy, you
are not going any farther ... we are on strike, and I don't
think you are going to run over anybody to go in there ...
if you do, you are going to be sorry." Robinson climbed
down from his truck and telephoned Supervisor Ray. Rob-
inson informed Ray that Bell was on strike and that he was
debarred from entering the plant by pickets who had threat-
ened him if he proceeded any further. Ray contacted a Bell
official who advised Ray that Bell would unlock a rear gate.
Ray was instructed to convey the freight to this entrance.
Ray communicated this information to Robinson. Rob-
inson drove the truck to the new location, but was met by
about 10 pickets who blocked access to the gate. Additional-
ly, ingress was impeded by cars which had been parked in
the street. The Bell official approached the truck and sug-
gested that Robinson return the load to Respondent's termi-
nal and that Bell would use one of its vehicles to pick up the
freight at that location. Robinson countered that, to save
time and trouble for all concerned, he would unload the
cargo at the rear gate. The official agreed to this procedure
and departed to dispatch a small Bell truck to take on the
shipment. A short time later, another Bell official appeared
and instructed Robinson to telephone his terminal. Rob-
inson did so and contacted Ray. Ray inquired as to what
was the difficulty and Robinson responded that "they have
got a picket line up here, and I can't get in; and I am not
going to under the present conditions even if I could; I had
already been threatened ... I don't want to endanger. my-
self, and I don't want to get the company equipment tom
up." Robinson invited Ray to come to the Bell plant and
survey the situation, but Ray declined. When Robinson
again declined to move the freight, Ray commented "you
are just refusing to do your work." Robinson insisted that
he was not shirking his duties and explained that "I have
tried the best I can to work it out with this fellow, he even
told me; [the Bell official] told me himself not to go in, that
he would rather come out and get it and not cause any
trouble." Ray stated that the official was not coming out
and that "you [Robinson] are going in." Robinson once
more declined, and Ray rejoined, "Well, if that is the way
it is going to be, we don't need you any more. I will send
a man to relieve you." Robinson asked whether this meant
that he was discharged, and Ray replied "That's right. I will
bring a man to relieve you." While waiting for his relief,
Robinson removed his personal belongings from the cab
and walked over to some of the strikers where he discussed
with them the legality of the discharge although he did not
engage in any picketing.
Later that day, the relief man, Shorty Rice, drove to the
plant in a tractor. Rice told Robinson to return Rice's trac-
tor to the terminal while the latter attempted to drive the
truck into the gate. Robinson stated that he did not think
that he should use Respondent's equipment because he had
already been terminated by Ray. At this point, Rice ap-
proached the strikers, expressed sympathy for their cause,
but insisted that he would complete the delivery. However,
Rice was unsuccessful in this endeavor, whereupon he and
Robinson proceeded to a telephone booth where Rice called
Ray. Rice explained that he was experiencing difficulty in
making the delivery because of the pickets. Robinson then
took the phone and reported that Rice had instructions for
Robinson to return the tractor to the terminal. When Rob-
inson reiterated that he did not think he should perform this
chore because he had already been terminated, Ray re-
marked that "you are still on the clock at the present" and
directed Robinson to come to the office when he returned.
After Robinson arrived, Ray instructed Robinson to clock
out and come to work the next day at the beginning of the
shift.
Robinson punched out and proceeded to a phone
where he telephoned the local union representative in the
area for advice. Robinson then drove to a city parking lot
across the street from the Bell installation where he met a
striking employee of Bell who was a shop steward for that
company. Together they visited a local union office to dis-
cuss Robinson's problem and then he returned to the park-
ing lot. In company with a union representative whom
Robinson met at the lot, he went to lunch and then applied
for a job with another common carrier in Asheville. After
lunch, Robinson returned to the parking lot and observed
Rice sitting in a small truck in the vicinity. Before Robinson
left for home, he noticed that the city police had arrived, the
picket line was broken up, and Rice was permitted to enter
the Bell plant. At no time during his visits to the lot did
Robinson join the picket line. Moreover, he testified and I
find that Robinson would have made the delivery if it were
physically permissible to do so.
The following day, July 14, 1971, Robinson reported to
the terminal at the appointed hour and was met by Ray.
Ray announced that "I have been instructed to relieve you
of all duties," adding that Robinson's paycheck and termi-
nation slip would be available the next da_y. Sometime there-
after, Robinson received a "Separation Notice" on a form
provided by the State Employment Security Commission
which recited that Respondent's professed reason for his
FREDRICKSON MOTOR EXPRESS CORPORATION
separation was for "engaging in misconduct at customer's
premises after refusing work assignment ." Respondent's
Vice President Bill Fredrickson testified that, during the
Bell strike, another driver requested that he not be assigned
to drive through the picket line. According to Fredrickson,
"We put him on another job and sent another man" and the
driver was never disciplined or discharged.
In Overnite Transportation Company,12 a case involving
facts strikingly parallel to those presented herein, the Board
had occasion to consider the question of the balancing of
an employer's right to run his business and the right of an
employee to engage in protected, concerted activities. In
that decision, the Board observed:
The Board has held, with court approval, that employ-
ees engage in protected concerted activity when they
respect a picket line established at the premises of an-
other employer. [Citations omitted.] Recognizing the
right of an employer to run his business despite this
protected activity, the Board has held that an employer
does not violate the Act in terminating such employees
if the employer acts "only to preserve efficient opera-
tion of his business, and ... only so [that he] could
immediately or within a short period thereafter replace
them with others willing to perform the scheduled work
...." [Emphasis supplied.] At the same time, however,
it is the Board's view that if the protected right of
employees is to have any meaning at all, the employer
who would justify a discharge on the basis of an over-
riding employer interest must present more than a mere
showing that someone else may have to do the work.
That fact is inherent in every situation where employ-
ees fail to perform a portion of their assigned tasks by
respecting a picket line. To accept it alone as conclusive
proof that their services were terminated solely to pre-
serve efficient operation of the employer's business
would be to render illusory any finding that the em-
ployees engaged in protected activity. It would leave
the refusal to cross a picket line without any protection
at all. Clearly, what is required is the balancing of two
opposing rights, and it is only when the employer's
business need to replace the employees is such as clear-
ly to outweigh the employees' right to engage in pro-
tected activity that an invasion of the statutory right is
justified.
In the instant case, Respondent patently had no cause
to discharge Robinson under the teachings of Overnite. The
record clearly shows that Robinson made every effort to
discharge his cargo at the Bell plant but was thwarted by
Bell's pickets who threatened Robinson with bodily harm,
and by his concern that Respondent's equipment might be
damaged. Robinson suggested and Bell's official concurred
that Robinson should unload the freight at the rear gate and
that Bell would transport the materials in its vehicle. Addi-
tionally, Bell volunteered to pick up the cargo at
Respondent's terminal. When Robinson was unsuccessful
in making the delivery, Respondent dispatched another
driver to perform the chore without, so far as this record
stands, disrupting in any manner the orderly conduct of its
business. Indeed, the substitute driver was also barred from
12 154 NLRB 1271, 1274.
567
making the delivery until the local constabulary dispersed
the pickets and escorted the truck through the gate, an
accommodation not made available to Robinson. More-
over, Respondent's Vice President Bill Fredrickson candid-
ly admitted that at a later date, another driver refused to
drive through the same picket line and that "We put him on
another job and sent another man" without discharging or
otherwise disciplining the recalcitrant. In short, I find that
Respondent discharged Robinson on July 14, 1971, because
he engaged in a protected, concerted activity by refusing to
cross the picket line, without any weighty countervailing
business necessity present to justify such action. I therefore
conclude that, by so doing, Respondent violated Section
8(a)(3) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent set forth in section I, above, have a close, intimate,
and substantial relation to trade and commerce among the
several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
V THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
I have heretofore found that Respondent discharged
Murrey Sherrill on February 4, 1971, Marshall Ruple on
March 2, 1971, Richard Eady on April 5, 1971, Don Larson
on April 23, 1971, and A. Dale Robinson on July 14, 1971,
because they engaged in union activities and/or in other
protected, concerted activities under the Act. I shall there-
fore recommend that Respondent offer to Sherrill, Ruple,
Eady, Larson, and Robinson immediate and full rein-
statement to their former jobs, or if those jobs no longer
exist, to substantially equivalent jobs, and make them whole
for any loss of pay they may have suffered by reason of the
discrimination practiced against them, by payment to each
of a sum equal to that which he normally would have earned
from the date of his discharge to the date of offer of rein-
statement, less net earnings during said period. The backpay
provided herein shall be computed in accordance with the
Board's formula set forth in F. W. Woolworth Company, 90
NLRB 289, with interest thereon at the rate of 6 percent per
annum computed in the manner prescribed in Isis Plumbing
& Heating Co., 138 NLRB 716.
Because of the nature and extent of the unfair labor
practices engaged in by Respondent, which evince an atti-
tude of opposition to the purposes of the Act in general, I
deem it necessary to recommend that Respondent cease and
desist from in any other manner infringing upon the rights
of employees guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and
conclusions, and upon the entire record in the case, I hereby
make the following:
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Murrey Sherrill, Marshall Ruple,
Richard Eady, Don Larson, and A. Dale Robinson, thereby
discriminating in regard to their hire and tenure of employ-
ment, in order to discourage their engagement in union or
concerted activities protected by the Act, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
4. By interfering with, restraining, and coercing em-
ployees in the exercise of their rights guaranteed in Section
7 of the Act, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in these
cases, and pursuant to Section, 10(a) of the Act, I hereby
issue the following recommended:
ORDER 13
Fredrickson Motor Express Corporation, Charlotte,
North Carolina, its officers, agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Discharging employees, thereby discriminating in
regard to their hire and tenure of employment, in order to
discourage their engagement in union or concerted activi-
ties protected by the Act.
(b) Coercively interrogating employees concerning
their union activities and affiliations.
(c) Ordering employees to cease engaging in union ac-
tivities and to report the engagement in union activities by
other employees.
(d) Threatening employees that there would never be a
union at Respondent's terminals.
(e) Threatening employees with discharge for engaging
in union activities.
(f) Threatening employees with reprisals for wearing
union insignia on their apparel.
(g) Threatening employees that wage increases would
be withheld if they engaged in union activities.
(h) Informing employees that Respondent would never
execute a contract with the Union.
(i) Warning employees that Respondent was making a
list of the employees who wore union insignia.
(j) Informing employees that Respondent would learn
the names of employees who signed union authorization
cards.
(k) Ordering employees to refrain from engaging in
union activities on company time while permitting employ-
ees to engage in other non -work activities on working time.
(1) Discriminatorily promulgating and enforcing a no-
solicitation rule.
(m) In any other manner interfering with, restraining,
or coercing employees in the exercise of their right to self-
organization, to form, join or assist any labor organization,
to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose
of collective bargaining, or other mutual aid or protection,
or to refrain from any or all such activities.
2. Take the following affirmative action which I find is
necessary to effectuate the policies of the Act.
(a) Offer to Murrey Sherrill, Marshall Ruple, Richard
Eady, Don Larson, and A. Dale Robinson immediate and
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent employment and
make them whole for any loss of pay which they may have
suffered as a result of the discrimination practiced against
them, in the manner set forth in the section of this Decision
entitled "The Remedy."
(b) Notify Murrey Sherrill, Marshall Ruple, Richard
Eady, Don Larson, and A. Dale Robinson, if presently
serving in the Armed Forces of the United States, of their
right, to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from
the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due herein.
(d) Post at its terminals in Charlotte, Asheville, Hicko-
ry, and King Mountain, North Carolina, copies of the no-
tice attached hereto and marked "Appendix."14 Copies of
said notice, on forms to be provided by the Regional Direc-
tor for Region 11, after being duly signed by Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 consec-
utive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 11, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith."
IT IS FURTHER RECOMMENDED that all allegations in the
complaint not found herein be dismissed.
13 In the event that no exceptions are filed as provided by Section 102.46
of the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations and recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations , be adopted
by the Board and become its findings , conclusions and order, and all objec-
tions thereto shall be deemed waived for all purposes.
14 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
15 In the event that this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read : "Notify
the Regional Director for Region 11, in writing , within 20 days from the date
of this Order, what steps Respondent has taken to comply herewith."
FREDRICKSON MOTOR EXPRESS CORPORATION 569
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer Murrey Sherrill, Marshall Ruple,
Richard Eady, Don Larson, and A. Dale Robinson
immediate and full reinstatement to their former jobs
or, if those jobs are no longer in existence, to substan-
tially equivalent jobs, and reimburse them for any loss
of pay they may have suffered because of our discrim-
ination practiced against them.
WE WILL NOT discharge our employees, thereby dis-
criminating in regard to their hire and tenure of em-
ployment, in order to discourage their engagement in
union or concerted activities protected under the Na-
tional Labor Relations Act, as amended.
WE WILL NOT coercively interrogate our employees
concerning their union activities or affiliations.
WE WILL NOT order our employees to cease engag-
ing in union activities or to report on the union activi-
ties of other employees.
WE WILL Nor threaten our employees that there will
never be a union at our terminals.
WE WILL NOT threaten our employees with dis-
charge for engaging in activities on behalf of Interna-
tional Union of District 50, Allied and Technical
Workers of the United States and Canada, or any other
labor organization.
WE WILL NOT threaten our employees with reprisals
for wearing union insignia on their apparel.
WE WILL NOT threaten our employees that wage in-
creases will be withheld if they engage in union activi-
ties.
WE WILL NOT tell our employees that we will never
sign a contract with the above-named union.
WE WILL NOT warn our employees that we are mak-
ing a list of the names of employees who wear union
insignia.
WE WILL NOT tell our employees that we will learn
the names of the employees who sign union authoriza-
tion cards.
WE WILL NOT order our employees to refrain from
engaging in union activities on company time while
permitting employees to engage in other non-work ac-
tivities on working time.
WE WILL NOT discriminatorily promulgate or en-
force a no-solicitation rule.
WE WILL NOT, in any other manner, interfere with,
restrain, or coerce employees in the exercise of their
right to self-organization, to form, join, or assist any
labor organization, to bargain collectively through rep-
resentatives of their own choosing, to engage in con-
certed activities for the purposes of collective
bargaining, or other mutual aid or protection, or to
refrain from any or all such activities.
All our employees are free to become, remain, or re-
frain from becoming or remaining, members of the above-
named or any other labor organization.
FREDRICKSON MOTOR EXPRESS
CORPORATION
(Employer)
Dated By
(Representative) (Title)
We will notify Murrey Sherrill, Marshall Ruple, Richard
Eady, Don Larson, and A. Dale Robinson, if presently
serving in the Armed Forces of the United States , of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after their discharge
from the Armed Forces.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 1624 Wachovia Building, 301
North Main Street, Winston-Salem, North Carolina 27101,
Telephone 919-723-2300.