G.F.A. Transportation Co.

National Labor Relations Board - Board Decisions

Jan 29, 1968

169 N.L.R.B. 399 (N.L.R.B. 1968)

G.F.A. TRANSPORTATION CO. 399
G.F.A. Transportation Company and Teamsters,
Chauffeurs , Warehousemen & Helpers Local Union
No. 991 , affiliate of International Brotherhood of
Teamsters , Chauffeurs, Warehousemen & Helpers
of America , Ind. and Thomas Traylor , John H.
McKay, Arthur M. Hughes, and Buren R . Kirksey.
Cases 15-CA-2955-1, 15-CA-2955-2, 15-
CA-2955-3, 15-CA-2965-1, 15-CA-2965-2,
15-CA-2965--3, and 15-CA-2965-4
January 29, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On October 18, 1967, Trial Examiner Alba B.
Martin issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions
to the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
brief, and the entire record in the case, and hereby
adopts the findings,' conclusions,2 and recommen-
dations of the Trial Examiner with the following
modifications:
The Trial Examiner recommended that in deter-
mining the backpay of discriminatee Buren R. Kirk-
sey, his earnings should be considered to be the
average earnings of all the "extra, extra drivers"
from August 1, 1966, until the date Kirksey is of-
fered reinstatement. Inasmuch as the question of
Kirksey's earnings, in relation to those of the other
"extra, extra drivers" was not litigated, and no
evidence was taken as to Respondent's practice in
the allocation of work among these drivers, we shall
leave to the compliance stage of this proceeding the
establishment of the proper measure of backpay
necessary to make Kirksey whole for any loss of
pay he may have suffered by reason of Respond-
ent's discrimination against him.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, G.F.A. Transportation
Company, Dothan, Alabama, its officers, agents,
successors, and assigns , shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified:
1. Delete paragraph 2(b) and substitute the fol-
lowing:
"(b) Make whole Thomas Traylor, John
McKay, Arthur Hughes, and Buren R. Kirksey, for
any loss of pay they may have suffered by reason of
Respondent' s discrimination against them, in ac-
cordance with the recommendations set forth in the
section of the Trial Examiner' s Decision entitled
`The Remedy,' as modified in the Board's Decision
herein."
2. Delete from the second paragraph of the
notice attached to the Trial Examiner 's Decision,
the words "a Trial Examiner of."
3. Delete from that line of the notice attached to
the Trial Examiner's Decision, which reads: "The
Trial Examiner has also ordered us to assure our
employees that," the words "Trial Examiner" and
substitute the words "National Labor Relations
Board."
4. Delete the words, "or threaten any other ac-
tion contrary to your interest" from the fourth "WE
WILL NOT" paragraph of the notice attached to the
Trial Examiner's Decision.
5. Delete from the Appendix attached to the
Trial Examiner's Decision , the first line of the first
paragraph after the last "WE W:LL NOT" paragraph
the words "Board Trial Examiner" and substitute
the words "National Labor Relations Board."
6. Delete from the paragraph mentioned in 5,
above, of the notice attached to the Trial Ex-
aminer 's Decision the words "Trial Examiner" and
substitute the words "National Labor Relations
Board."
' The Respondent has excepted to certain credibility findings made by
the Trial Examiner, It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the resolu-
tions were incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd 188 F 2d 362 (C.A, 3) We find no such basis for disturbing the Trial
Examiner's credibility findings in this case.
2 The Respondent has taken exception to the Trial Examiner 's charac-
terization of certain conduct, which it admits to, as "further" violations of
Section 8 (a)(1) of the Act. Respondent admitted to the charge of com-
mitting 58 separate acts constituting Section 8 (a)(1) violations, and the
Trial Examiner made separate, numbered findings that each of these acts
was a Section 8(a)(1) violation. Later, in the fifth paragraph and the last
part of the sixth paragraph of section III, C, 3 of the Trial Examiner's
Decision , he appears to make duplicate findings of Section 8 (a)(1) viola-
tions with respect to the same acts listed and found as items 9-12 of the
admitted violations , located on p. 3 of his Decision . We agree with
Respondent that these duplicate findings should not be characterized as
"further" violations of Section 8(a)(1) if this is intended to mean that they
are in addition to the corresponding admitted violations . With this un-
derstanding , we adopt the Trial Examiner s conclusion that these acts did
constitute violations of the Act.
169 NLRB No. 72
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALBA B. MARTIN , Trial Examiner : This proceeding,
with all parties represented , was heard before me in
Dothan , Alabama , on May 2 , 3, and 4, 1967, on com-
plaint of the General Counsel and answer of G.F.A.
Transportation Company , Respondent herein.' The is-
sues litigated were whether Respondent unlawfully
discharged three of its old over-the-road drivers and one
new driver in August and September 1967 in violation of
Section 8 (a)(3) of the National Labor Relations Act, as
amended , and otherwise violated Section 8(a)(1) of the
Act.
After the hearing the General Counsel and Respondent
filed helpful briefs, which have been carefully considered.
The General Counsel filed a motion to correct the record
in certain respects, to which Respondent has filed no ob-
jections. Upon consideration the General Counsel's mo-
tion is hereby granted and the corrections are hereby
made. The General Counsel's motion has been placed in
the original exhibit file as Trial Examiner's Exhibit 1.
Upon the entire record and my observation of the wit-
nesses , I hereby make the following:
FINDINGS AND CONCLUSIONS
I.' THE BUSINESS OF THE RESPONDENT
drivers. The drivers' organizing efforts began in June.
Two organizing meetings were held in July; the first on
July 9, in an employee's home; the second on July 16, at
"Gabe's Fish Camp." The Union's petition was filed July
22 (Case 15-RC-3443). At the election conducted by the
Regional Director on October 10, of 39 eligible voters,
22 voted for the Union and 17 voted against the Union.
The Union was certified on October 18, 1966.
B. Respondent's Hostility to the Union and the
Admitted Violations of Section 8(a)(1)
Respondent's president, principal stockholder, and ex-
ecutive head of the business, Milton Adams, was dead set
against the organization of the drivers, and his hostility
was strongly demonstrated in the record. At the hearing
Respondent stipulated that to most of the people he spoke
with, Adams expressed his desire not to have the drivers
represented by the Union. On the witness stand Adams
testified that he told an applicant for employment, Buren
R. Kirksey, that Adams could see no good points at all in
the Union. On the witness stand Adams admitted that he
had queried every driver he had ever hired about his at-
titude towards the Union.
At the hearing Respondent admitted and conceded that
it engaged in the 8(a)(1) violations alleged in the com-
plaint. Respondent admitted and conceded and the
parties stipulated that Respondent through its president
Milton Adams, engaged in the following acts and con-
duct, which I find on the entire record were violative of
Section 8(a)(1) of the Act:
(1) During the early part of June 1966, created an im-
pression of surveillance by informing an employee that
Respondent had heard that an employee had been talking
about the Union.
(2) On or about the early part of June 1966, warned an
employee that employees were cutting their own throats
by getting involved in the Union.
(3) During the early part of June 1966, requested an
employee to speak to other employees in an effort to de-
feat the Union.
(4) On or about July 3, 1966, created an impression of
surveillance by informing an employee that Respondent
could identify the ringleaders of the Union.
(5) On or about July 3, 1966, identified the union
leaders to an employee.
(6) On or about July 4, 1966, solicited employees to
get together with Respondent for the purpose of stopping
the Union.
(7) On or about July 4, 1966, urged employees to form
a committee to air their gripes rather than the Union.
(8) On or about July 4, 1966, promised employees a
wage increase if they would forget the Union.
(9) On or about July 13, 1966, attempted to dissuade
an employee from his union activities, interests, and
desires by implied threats and promises.
(10) On or about July 13, 1966, threatened an em-
ployee by stating that if he were fired, Respondent would
see to it that he would not get a job or any credit in the
city of Dothan because of his union activities.
(11) On or about July 15, 1966, requested employees
to reject their union affiliation.
Traylor; -2, by John H. McKay; -3, by Arthur M. Hughes; -4, by Buren
R. Kirksey.
G.F.A. Transportation Company, Respondent herein,
is an Alabama corporation engaged in a trucking business
in Dothan, Alabama, as a common carrier. During the 12
months prior to issuance of the complaint on February
23, 1967, a representative period, in the conduct of its
business Respondent derived revenues in excess of
$50,000 for the transportation of goods from Alabama to
points outside the State of Alabama. Respondent ad-
mitted, and I find, that at all times material herein it has
been and is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the National Labor
Relations Act, as amended, 29 U.S.C. Sec. 151, et seq.,
herein called the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters , Chauffeurs, Warehousemen & Helpers
Local Union No. 991, affiliate of International Brother-
hood of Teamsters , Chauffeurs , Warehouseman & Help-
ers of America, Inc., is and has been at all times material
herein a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Setting in Which the Events Occurred
The events herein occurred in 1966, during the period
Respondent 's over-the-road truckdrivers assigned to its
Dothan, Alabama, terminal were trying to organize them-
selves into Local Union No. 991 of the Teamsters Union.
This was a self-organizational movement initiated by the
' The Union filed the charges in Cases 15-CA-2955-1, -2, and -3, on
November 2, 1966 . The four charges in Cases 15-CA-2965-1, -2, -3,
and -4 were filed by individuals on November 16, 1966 : -1, by Thomas
G.F.A. TRANSPORTATION CO.
(12) On or about July 15, 1966, warned employees to
get a good hold because Respondent was going to fight
the Union all the way.
(13) On or about July 15, 1966, promised employees
a wage increase or any other benefits they desired if they
would abandon their union affiliation.
(14) On or about July 16, 1966, in and around the city
of Dothan, Alabama, urged employees not to attend a
union meeting that night.
(15) On or about July 16, 1966, promised various re-
wards and benefits to employees if they did not attend a
union meeting.
(16) On or about July 16, 1966, threatened an em-
ployee by stating that if the employee were fired that he
would have to leave Houston county in order to find
another job.
(17) On or about July 16, 1966, in and around Dothan,
Alabama, engaged in surveillance of a union meeting.
(18) On or about July 17, 1966 , created an impression
of surveillance by accusing an employee of having at-
tended a union meeting the night before.
(19) On or about July 17, 1966, threatened an em-
ployee by stating that if the terminal went union, he would
move every employee to Atlanta.
(20) On or about July 17, 1966, questioned an em-
ployee as to whether he had attended a union meeting.
(21) On or about July 17 , 1966 , threatened an em-
ployee by stating that he would redomicile all the drivers
if the Union organized the terminal.
(22) On or about July 19, 1966, interrogated an em-
ployee as to whether he had signed a union card.
(23) During the latter part of July 1966, informed an
employee that all the Union would do was cut their pay
and require them to move from Dothan to Atlanta or
someplace else outside of Dothan.
(24) On or about August 1, 1966, solicited an em-
ployee's help in breaking up the Union.
(25) On or about August 14, 1966, requested an em-
ployee to sign a petition to get the Union out of the Com-
pany.
(26) On or about August 14, 1966, threatened an em-
ployee by stating that if the Union came into the plant,
Respondent would hire more drivers. '
(27) On or about August 15, 1966 , suggested to an
employee that the Company would not hire Negroes as
long as it remained nonunion and that if the Company
went union, it would have to hire them.
(28) On or about August 15, 1966 , advised an em-
ployee'that if he did not stay out of the Union he would
not make a thing.
(29) On or about August 15, 1966, solicited an em-
ployee to circulate a petition among the employees stating
that they did not want the Union to represent them.
(30) On or about August 15, 1966, requested an em-
ployee to sign a petition to do away with the Union.
(31) On or about August 19, 1966, requested an em-
ployee to sign a petition doing away with the Union:
(32) On or about August 19, 1966, requested an em-
ployee to have other employees sign an antiunion-peti-
tion.
(33) On or about September 17, 1966, interrogated an
employee about his union desires and feelings.
(34) On or about September 17, 1966, advised an em-
ployee that he could fire him then or a year from then
because of his union activities.
(35) On or about September 17, 1966, advised an em-
401
ployee that he was making a mistake by associating with
the Union.
(36) On or about Steptember 25, 1966, interrogated an
employee about his union desires and feelings and the
union feeling 's and desires and activities of other em-
ployees.
(37) On or about October 2, 1966, offered to grant an
employee time off if union adherents were bothering him,
(38) On or about October 3, 1966, threatened an em-
ployee by stating that he would have to leave town and
get another job if he associated with the Union.
(39) On or about October 6, 1966, advised an em-
ployee that he would beat the Union, and that it would
take him about a year to clean house.
(40) On or about October 6, 1966, threatened an em-
ployee by stating that if the Union won the election,
Respondent wouto redomicile the drivers in Atlanta.
(41) On or about October 7, 1966, advised an em-
ployee that he would raise the employees ' vacation pay
and other benefits if they did not vote for the Union.
(42) On or about October 7, 1966, requested an em-
ployee to speak to other employees about disavowing the
Union.
(43) On or about October 14, 1966, accused an em-
ployee of lying to him about the results of the election.
(44) On or about October 14, 1966 , accused an em-
ployee of voting for the Union.
(45) On or about October 16, 1966, told an employee
that he should not be proud of how he voted in the elec-
tion and asked the employee what he would do now.
(46) On or about October 18, 1966, accused an em-
ployee of having lied to Respondent about his voting in-
tentions.
(47) On or about October 20, 1966, threatened an em-
ployee by stating that he would redomicile the drivers in
Atlanta if he ever had to sign a contract with the Union.
(48) On or about October 23, 1966, interrogated an
employee about a union meeting and whether certain em-
ployees were present at the meeting.
(49) On or about November 10, 1966, advised an em-
ployee that if Respondent did sign a union contract that
he would move the terminal out of Dothan and would not
run the freight line as a union line.
(50) On or about November 10, 1966, threatened em-
ployees by stating that if Respondent had to sign a union
contract , the drivers would be moving.
(51) On or about November 17, 1966, threatened an
employee by stating it appeared that the employees were
trying to be moved.
(52) On or about November 17, 1966, created an im-
pression of surveillance by advising an employee that
Respondent knew the Union had voted to strike.
(53) On or about November 17, 1966, advised an em-
ployee that it would be worth a week's salary to the em-
ployee if he could get the other employees to strike
sooner so Respondent could replace them.
(54) On or about November 17, 1966, threatened to
sell the line so that the employees would not have a job.
(55) On or about November 17, 1966, advised an em-
ployee that none of the drivers could get a job in Dothan
if they were discharged.
(56) On or about November 17, 1966, advised an em-
ployee that if Respondent ever signed a contract, the
drivers would be moved from Dothan to wherever
Respondent wanted.
(57) On or about November 17, 1966 , questioned an
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee as to whether the employees would still drive
a truck if the Union struck and put up picket lines.
(58) On or about November 17, 1966, warned an em-
ployee that Respondent would not sign a contract.
The above violations cover almost the full range of
possible 8(a)(1) violations by Respondent 's president:
from interrogations to threats , promises of benefit, sur-
veillance and creating the impression of surveillance;
from open efforts to persuade employees to stop the
Union by petitions , by forming a committee to air their
gripes , to promises of a wage increase if the employees
would forget the Union . Adams ' antiunion campaign
lasted from early June until at least November 17, 1966,
which period enclosed all of the discharges involved
herein.
In these violations President Adams also made express
threats against the jobs of employees . Thus, he
threatened that he could fire an employee then or a year
from then because of his union activities ; he threatened
that an employee would have to leave town and get
another job if he associated with the Union; he threatened
to move the terminal out of Dothan (in and around where
many of the employees lived); and he threatened an em-
ployee that he would beat the Union, and that it would
take him about a year to clean house.
In addition to these admitted violations , the record
established that Adams made other threats against em-
ployees ' jobs . These are given below in the consideration
of the individual discharges.
At the hearing, Respondent admitted and conceded and
the parties stipulated that Respondent, by its central
dispatcher, Floyd Snell, engaged in the following acts and
conduct, which I find on the entire record were further
violations of Section 8(a)(1): (1) on or about July 16,
1966, at its Dothan, Alabama, plant, requested em-
ployees not to attend a union meeting ; (2) on or about
July 16, 1966, in and around Dothan, Alabama, engaged
in surveillance of a union meeting ; (3) on or about July
18, 1966, at its Dothan, Alabama, plant, inquired as to the
voting intentions of an employee ; (4) on or about July
25, 1966, at its Dothan, Alabama, plant, interrogated an
employee about his union desires , feelings , and sym-
pathies.
C. The Discharges
1. Introductory
Three of the dischargees, Thomas Traylor, John
McKay, and Arthur Hughes, were longtime safe drivers
of Respondent who had a combined total of over 32
years' service with the Company and had just received
safe-driving awards for a combined total of 22 safe-driv-
ing years . Each was discharged summarily by Respond-
ent's president , who gave them little or no opportunity
to explain their respective alleged wrongdoings before
discharging them . In each severance interview he had the
severance check ready before the interview, which in-
dicated that the decision to discharge had been reached
prior to the interview and that Adams had a closed mind
as to any explanation any dischargee might have offered.
The four severances here involved were all bunched
between the filing of the petition on July 22 and the hold-
ing of the election on October 10. They occurred on
about August 1, 11, 27, and September 22, during the
period when, as has been seen above, President Adams
was conducting a vigorous antiunion campaign designed
to beat the self-organizational movement by any and all
means at his command. There were no discharges follow-
ing this group of discharges until the hearing herein in
May 1967, and the record indicates that the last discharge
prior to this group of discharges probably occurred prior
to May 1966. Respondent's defense offered no explana-
tion for the bunching of these discharges between the
petition and the election. In view of the broad range and
intensity of President Adams' antiunion activity extend-
ing over a period of months, it would have required far
more emotional and legal restraint than the record
showed him to have exercised, for Adams not to have in-
cluded discharge as one of his antiunion weapons.
2. Company knowledge of the dischargees' union
activities and sympathies
There can be no doubt on this record that Respondent
knew of the union activities and sympathies of the four
dischargees. According to the credible and credited
testimony of driver E. J. Wood, on July 2 President
Adams told Wood that he knew who the ringleaders of
the Union were, naming four employees including
Traylor and McKay, and that he was going to have a
meeting and "bring this thing out in the open." The meet-
ing was held July 4. President Adams' 8(a)(1) violations
on July 4 have been set forth above;
In addition both Adams and Central Dispatcher
Snell had the employees' union meeting of July ' 16 under
surveillance, at which Traylor, McKay, and Hughes were
present among others. In addition, as was seen above, the
following day Adams accused an employee of having at-
tended the meeting the night before.
Further, as is seen below, Adams knew from
predischarge discussion with them that Traylor and
McKay were strongly prounion; and Hughes refused at
the request of a friend and business associate of Adams
to go to Adams' office to talk to him about the Union. It
is impossible on this record to believe that word of this
refusal did not reach Adams.
Further, according to credible testimony, on October
23, before any of the charges were filed or served on
Respondent, Adams telephoned an employee at his home
and asked him how many had attended the union meeting
the night before, and whether Traylor, McKay, and
Hughes were present - showing that in his mind Adams
connected these three with the Union.
As a witness Adams admitted some of the statements
and interrogations attributed to him by the drivers and de-
nied some of them, but his testimony revealed that he had
no clearly trustworthy remembrance of his conversations
about the Union because he had so many of them. He ad-
mitted that he could not recall all his discussions about
the Union. He said, "I had so many discussions about the
Union since this has been in effect, until I cannot recall
every conversation I have had." In view of this admis-
sion , and as by their demeanor as well as the substance of
their testimony the numerous employee witnesses ap-
peared to me to be relating the truth, I credit the em-
ployees' testimony where it conflicts with Adams'.
Further, because some of Adams' testim ony was patently
contrary to the truth, he did not impress me as always a
credible witness.
As for Kirksey, the new employee, Respondent's un-
derstanding of where he stood concerning the Union is
given below.
G.F.A. TRANSPORTATION CO. 403
3. The discharge of Thomas Traylor
Thomas Traylor worked for Respondent for over 9
years prior to his summary discharge on August 11,
1966.
Traylor was one of the two drivers who first started
talking about trying to organize the drivers, around June
1, 1966. He talked with Respondent's Dothan over-the-
road drivers at its Dothan terminal and where he would
meet them at the Atlanta and Mobile terminals. He
passed out union cards. He signed a card on June 17. He
attended the two union meetings, one on July 9, and the
other on July 16, which was under surveillance by Pres-
ident Adams and Central Dispatcher Snell.
President Adams' knowledge of Traylor' s union alle-
giance or sympathy was established in the record and was
not questioned by Respondent.
On July 13 in Adams' office, Adams told Traylor he
thought Traylor would tell him the truth and asked
Traylor if he was for the Union. Traylor replied that he
was, that he had nothing to hide. According to Traylor's
credible and undenied testimony, Adams asked him what
he thought he would benefit by the Union if I was still
around. Adams said he would like to talk them out of the
Union and that if they would make him an offer as to what
they wanted he would consider as to whether he could
grant it. President Adams said that if Traylor got fired
from the Company, Adams would see that Traylor "got
no credit in Dothan, or no other job that he had the
Chamber of Commerce backing him."
In the context of the conversation about the Union, the
italicized words in the paragraph above amounted to an
indirect threat of discharge, and of dire economic con-
sequences following discharge, because of Traylor's sym-
pathy for the Union. By these threats, and also the inter-
rogations, Respondent further violated Section 8(a)(1) of
the Act.
Two days later, on July 15, as Traylor and another
driver were together, President Adams invited them into
the office and interrogated them about the Union. He in-
dicated he wanted to talk to them separately, and when
they refused, he said they had him over a barrel, that if he
talked to them they could use it to blackmail him, that it
would be two witnesses against one. In his office he asked
them what had caused them to try to get the Union
started. The drivers cited several reasons, including in-
sects in the bunkhouse in Mobile and their having to run
too many hours without resting. At the end Adams said
he saw that he, could not talk them out of the Union, so
that the best they could do would be to get as good a hold
on him as they could because if they did not, he would get
one of them, and that "if it went union, he was going to go
right by the book." Adams' threats to get a hold on the
drivers and to go by the book if it went union were further
violations of Section 8(a)(1) of the Act.
On July 28, Central Dispatcher 'Snell asked Traylor
how he was going to vote' in the election. Traylor replied
he did not know how President Adams was going to vote
and that when he found out, Traylor would make up his
2 The rule read "Hauling rider is absolutely forbidden. The only excep-
tions being - an employee of your own organization on company payroll
and drivers in distress to nearest telephone. Penalty for hauling
unauthorized passengers - Dismissal."
3 That this conclusion is sound and correct was shown further by the
fact that although the written rules were announced under the cover of a
"safety program" they were couched in terms of violations, and some of
them , including the one herein involved, carried harsh penalties. There
mind. By this interrogation, Respondent further violated
Section 8(a)(1) of the Act.
About 8:30 p.m. on August 10, while in the country
hauling a load, Traylor picked up a woman whose car was
stranded and who urgently implored his assistance, and
gave her a lift for about 4 miles to the next town. Pres-
ident Adams testified that two company salesmen saw
the woman in the cab and reported it to him that night.
The following morning, when he returned to Dothan,
President Adams abruptly discharged Traylor allegedly
for carrying a woman passenger contrary to a written
rule 2 of the Company. Traylor refused his final check and
Adams mailed it to him. The question is whether the dis-
charge was because of and to discourage activity in the
Union, and whether citing the rule was a mere pretext.
Respondent had had no written rules until the advent
of the Union, and no convincing reason appears other
than to set the "book" by which President Adams
threatened to "go," as to why the written rules were put
into effect on July 24, 1966, instead of months before.
For about a year, pursuant to the requirements of the
Respondent's insurance company, the general insurance
agent, Markel Services, Inc., had been trying to get
Respondent to adopt written rules and had given Re-
spondent suggested sets of written rules. Markel had
brought the matter up at least four times during the 6 or 7
months prior to July 24. Adams' only explanation at the
hearing for this delay was that it was one of those things
that could be postponed. Respondent announced the
written rules, and had each driver sign them at a safety
meeting on July 24; and the entire record justifies the in-
ference, which I reach, that in the face of the union chal-
lenge Adams felt that the matter should be postponed no
longer. Instituting the written rules at this time, and
requiring the drivers to sign them, after not having had
any written rules during the 9 years it had been Adams'
company, appears to have been the method by which
Adams was writing "the book" whereby to get his
threatened "good hold" upon the drivers; the method by
which Adams was setting a trap to catch and penalize
drivers for what had theretofore been condoned.3 By
adopting and effectuating the written rules at this time
and having the drivers sign them, for these reasons at
least in part, Respondent further violated Section 8(a)(1)
of the Act.
Adams' own attitude towards the rules was revealed by
his statement to two drivers, Starling and Crews, several
weeks later. Asked how he wanted them to drive, by the
rules or as they had driven before, Adams replied that
they should drive "like you've been driving." He added
that the rules were "just some rules that the Markel men
had to put out."
Adams' attitude towards Interstate Commerce Com-
mission rules indicated further his lack of regard for rules.
Respondent sometimes used its extra drivers in such a
way as to deprive them of the required number of hours
of rest each day. Uncontradicted and credible testimony
established that Adams required extra drivers to falsify
their daily logs on ICC forms in order to keep their jobs.
He required them to "work" their logs so that they would
was no evidence that any previous oral rules had carved such harsh penal-
ties or that Adams was theretofore a strict or harsh employer. A credible
witness, William Crews, told President Adams, without contradiction by
Adams, that prior to the Union the drivers had "gotten away with
murder" tune and time again , and that they had not been punished for
anything The record showed that before they joined the Union the-rela-
tionship between the drivers and Adams was relaxed and that the men
were good and safe drivers who did their work to management's apparent
satisfaction.
350-212 0-70-27
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appear "legal" regardless of whether the logs correctly
reflected the times and places of the drivers' daily activi-
ties.
The record established that prior to.the written rules,
throughout the years of Adams' control of the Company,
the drivers had picked up people in distress on the
highway and carried them to where they could get
assistance . They had carried people in distress, regardless
of whether they were professional drivers or "laymen."
Shortly after Adams took over the Company in 1957, he
told a driver, Thomas, "to be nice and courteous to any-
body that was on the road and if we could help them to
help them." About a year and a quarter prior to Traylor's
discharge allegedly for violating one of the written rules,
driver Crews picked up a bleeding boy who had been in-
jured in a car accident and carried him to a nearby city.
Upon his return to Dothan, he told President Adams
about it. Adams commented that "you had to be careful
who you picked up now a days," but said nothing about
carrying only professional drivers and not laymen. The
record suggested no thought in Adams' mind of discharg-
ing Crews.
Others carried by drivers within the past few years
from situations of distress to ports of aid and assistance
included , in addition to commercial drivers, another
bleeding boy, a woman out of gas, a hardware man, a "fel-
low in an automobile broken down," and a man with a flat
tire. Although none of these incidents were reported to
Adams, it seems unlikely to me that five different drivers
would have assisted these five laymen if there had been,
as Respondent claimed, a tight oral rule against assisting
laymen, and if the drivers had had any idea that they were
risking their jobs by giving lifts to laymen in distress.
Respondent showed that another driver, Hunt, refused
to carry the woman needing gasoline , and urged that this
proved the existence of an oral rule against carrying
laymen. But Hunt did not give any reason for his refusal
to Starling, who carried her, and the conversation
between them related not to a rule but to which direction
(they were going in opposite directions and stopped at the
stalled car) would be most apt to yield an open gasoline
station at that early dark hour of the morning.
Respondent contended that the July 24 written rules in
effect codified the existing oral rules. If the alleged oral
rule against picking up other than commercial drivers car-
ried a discharge penalty for its violation, as did the written
rule, certainly it was never shown to have been enforced.
The driver who reported to President Adams that he had
carried a bleeding boy was not discharged or even
rebuked for it. Nor did the record show that any driver
other than Traylor was ever discharged for alleged viola-
tion of the rule. The absence of any penalty attached to
the alleged oral rule is strong evidence either that such
rule did not exist or that its violations were condoned.
Upon the preponderance of the evidence, I conclude only
that any such oral rule lacked a penalty provision and that
the stiff penalty of discharge was added in the written ver-
sion as a part of Respondent's effort to entrap the drivers
because of their union activity.
To be noted in this regard is that although Respondent
offered considerable evidence of the existence of an oral
rule against picking up "laymen," none of this testimony
included a claim of a discharge penalty for violation of the
alleged oral rule.
In any case the discussion that took place at the July 24
meeting when the written rules were announced, concern-
ing the meaning of the rule in question, was unquestioned
proof that both the written and oral rules were am-
biguous. Credible testimony showed that after the meet-
ing some drivers understood they were not prohibited
from carrying laymen in distress. Other testimony
restricted permitted assistance to professional commer-
cial drivers in distress. Likewise, the instructions at the
meeting were inconsistent with instructions to a group of
drivers just after the meeting. At the meeting a Markel
agent said "drivers in distress" in the written rule meant
only commercial drivers. Immediately after the meeting
the Markel man and President Adams told a group that
they could not leave a layman stranded, that they should
get him to the nearest telephone.4 It is clear, further, that
at the meeting it was not explained that any previously.
existing oral rule was being modified by the addition of
the discharge penalty for violation.
As the written rule in question, including the penalty
clause, was not a codification of any existing oral rule, as
the written rules were effectuated in part at least to set a
trap for drivers because of their union activities, as Pres-
ident Adams had no serious regard for the rule, as other,
drivers had carried laymen with impunity, and as driver
Crews had not been discharged when he reported carry-
ing an injured boy to Adams a year and a quarter before,
I hold on the preponderance of the evidence in the entire
record considerd as a whole that the rule may not be as-
serted as a defense to Traylor's discharge; that the rule,
although the asserted justification of the discharge, was
not the real reason for the discharge and was but the basis
for a pretext on which to hand the discharge. To Respond-
ent's knowledge Traylor was in favor of the Union and
had attended a union meeting under surveillance by Pres-
ident Adams and Central Dispatcher Snell. Because of
Traylor's union sympathy and activity, President Adams
had threatened him with discharge and being blackballed
in the area. When Adams could not talk Traylor out of the
Union, he threatened him that he would "go by the
book." This was a part of Adams' program of " cleaning
house" in order to beat the Union. He discharged Traylor
summarily and had the final check ready before the inter-
view, which showed a closed mind as to anything Traylor
might say. Upon this evidence and the preponderance of
the evidence in the entire record considered as a whole,
I believe and find that the real reason for the discharge
was to penalize Traylor for his union sympathy and ac-
tivity and to discourage further union sympathy and ac-
tivity among the drivers, Respondent thereby violating
Section 8(a)(3) and (1) of the Act.
4. The discharge of Arthur Hughes
Arthur Hughes was Respondent's second oldest driver
in point of seniority. He had driven for Respondent for 20
years, through 3 different owners, prior to his discharge
by Adams on September 22, 1966. At the July 24 meet-
ing he received a 10-year safe-driving award.
A year or so after Adam s took over the Company in
1957, when the Union attempted to organize the drivers,
Hughes played the leading role against the Union. In
1966, he signed a union card in June, attended the two
3 This finding is based upon the testimony of Charles Starling and
Elmer Paul , who impressed me as credible witnesses . Their testimony was
contradicted by the Markel agent , P. H. Taylor, and by President Adams.
G.F.A. TRANSPORTATION CO.
union meetings on July 9 and 16. Hughes, Marion Green,
and another driver went out to Gabe's Fish Camp, where
the July 16 meeting was held, and made the reservation
for that meeting. Green testified as a witness for Re-
spondent at the hearing herein.
On about July 7 or 8, according to Hughes' uncon-
tradicted and credited testimony, a Dothan Cities Service
and Firestone dealer, who is a friend of President Adams
("and they have a business together"), telephoned
Hughes and said he wanted to come out and talk with
Hughes. This businessman, Dansey, went to Hughes'
home on July 21 or 22, where he told Hughes that Adams
wanted to see Hughes in his office. In effect refusing,
Hughes asked why Adams did not come to Hughes'
house to see him.
To be noted in this connection is that on July 11, at
Dansey's request, Thomas Traylor went to Dansey's of-
fice where Dansey talked to him about the Union and
asked him to go talk to Mr. Adams. Traylor complied
with the request and Adams' interrogations and threats to
Traylor on July 13 and 15 have been set forth above. This
was during the period of the union meetings attended by
Hughes, the second of which Adams and Snell had under
surveillance; and during the period of other extended
8(a)(1) activity conceded and admitted by Respondent as
seen above. Under all these circumstances, it is a
reasonable inference, which I reach, that at this time
Adams wanted to have a conversation with Hughes about
the Union and that Hughes' refusal to come to his office
and talk to him became known to Adams; thereby making
it completely clear to Adams that Hughes, who had been
the chief employee opponent of the Union a few years be-
fore, was now a supporter of the Union. The way Adams
was then thinking about the Union, as his acts betrayed,
this placed Hughes in the category of those to be
eliminated in the "house cleaning" Adams threatened.
Adams' opportunity to "clean out" Hughes came on
the night of September 20 and the morning of September
21, when the Markel agent for the area, William H. Dye,
reported to Adams that Hughes had threatened to kill
him. Dye's duties, as a "safety engineer" were to patrol
certain highways where Respondent's trucks ran and ob-
serve and report the conditions of the trucks and the driv-
ing. He testified he assisted in trying to "enforce" the
safety program.
When, over a long distance telephone call, Dye re-
ported to Adams that Hughes had threatened to kill Dye,
Adams asked no questions about the incident other than
whether Dye was hurt or needed help. Dye replied in the
negative to both questions. Although during the 9 years
Hughes had worked for Adams, the latter had had no
problem with him, no complaints, and no alleged threats
upon anyone, the testimony indicated no doubt in Adams'
mind as to the truth of Dye's assertion. When, in the con-
versation, Dye said he was thinking of having Hughes ar-
rested, Adams replied that if someone threatened to kill
him Adams damn sure would have him arrested. In spirit,
at least, this ran counter to a statement President Adams
5 After checking various boxes indicating the condition of the vehicle,
road conditions, and certain driving practices of the driver of the vehicle,
Dye wrote the following- "Observed unit as detailed above. Driver keeps
within posted limits and well to the right Thus far conditions were good.
Driver pulled over and stopped at one of the few pull-offs. I followed to
see who driver was. The driver, Mr. Arthur Hughes, met me at the rear of
the trailer with tire loumper in hand and stated, `If you have business up
this way, get on, I've had enough of this .... And if you follow me any-
405
had made to drivers Crews and Starling about a month
before. Crews had asked what to do if somebody was
"tailgating" him, following him too closely. Adams had
replied that all he could tell him was to stop and "beat hell
out of them." Surely, any such behavior as was recom-
mended by Adams would have had more serious reper-
cussions for driver and Adams as owner of the Company,
than the mere threat attributed to Hughes.
The following day, Adams being temporarily absent,
Dye handed his written report to Central Dispatcher
Snell. The wording of the report is set forth in the foot-
note 5 Among other things, Dye "pointed out to Snell" the
"attitude" of Hughes. Dye asked Snell whom he should
see to get a warrant out for Hughes' arrest. Snell replied
that he should see the county solicitor. Snell thus helped
Dye, seemingly believing Dye's version of the incident
with Hughes, without first, or ever, discussing the in-
cident with Hughes.
Dye then went to the county courthouse of Houston
County, which is located in Dothan, Alabama, and spoke
with the assistant district attorney. Pointing in the
direction of Respondent's loading dock in Dothan, Dye
told the assistant district attorney, in asking for a breach
of the peace warrant, that "out at the GFA loading dock"
Hughes had said to Dye, with a tool in his hand, words to
the effect that "I am going to beat your brains out." On
this representation, the assistant district attorney
prepared a warrant, gave it to Dye, and told him which
judge to take it to to get it signed. The warrant was ap-
parently served on Hughes by leaving it at the Company.
A few days after Hughes' discharge the case was nol-
prossed at the instance of Markel.
In fact, the incident between Hughes and Dye had oc-
curred not in Houston County, Alabama, within which
county the court had jurisdiction, but in the State of
Georgia, where the court had no jurisdiction.
The following day, September 22, Adams discharged
Hughes in the presence of Snell. It was a very short inter-
view. Adams referred to the trouble Hughes had had with
the Markel man. The testimony is in dispute as to
whether Hughes denied or admitted that there had been
any trouble; Hughes testifying that he said there was no
trouble; Adams and Snell testifying that Hughes admitted
there was some trouble. Adams said that he could not
have such threats of insurance people because they could
cancel the insurance and without insurance he could not
operate. Adams testified he referred to Dye's report but
did not offer Hughes an opportunity to read it or give him
a chance to read it. Without any further discussion, and
no vestige of an investigative inquiry as to Hughes' ver-
sion of the facts, Adams then gave Hughes two choices:
to resign, or to be fired. Hughes refused to resign. Adams
then told him he was fired, and offered his final check.
Hughes refused the check. Adams mailed it to him.
The testimony as to the 9:15 p.m. incident on Sep-
tember 20 between Hughes and Dye was completely
contradictory. Dye followed Hughes for about 10 or 12
miles, too closely, with his bright lights shining in
more I'll kill you.' At first I thought Mr. Hughes was kidding But he
stated, `You've got one man's job, now stay away from me or I'll kill you,
I mean it.' At this, I got back into my car and passed around to get tractor
number and resumed the 45 mph speed limit. Mr Hughes pulled out be-
hind me and got right on my tail following at approximately 50 feet for
about two miles, then dropped back."
"This man's attitude is very poor at the present time, which could result
in a definite hazard to the safety and life of others on the same road "
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hughes' rear vision mirror, according to Hughes; for
about 2 miles, at a proper distance with his low beams on,
according to Dye.6 Hughes' version was that when he
came to a spot where he could pull his tractor and trailer
clear off the road he pulled off. His obvious reason was to
let the "tailgating" car pass him. Instead of passing Dye
pulled up behind Hughes and stopped. Dye testified he
stopped to get the number of Hughes tractor, which he
admitted he could have obtained as he passed it, had he
chosen to do so . Both got out of their vehicles and met
alongside Hughes' trailer. Hughes testified he uttered no
threatening words and had nothing in his hand , but simply
told Dye forcefully, that his lights were blinding Hughes
and for Dye to go ahead in front of him. Hughes testified
Dye said he was doing what Hughes ' boss man (meaning
Adams ) was paying him to do. Hughes ' version as to no
threats and nothing in his hand was corroborated by two
other drivers, one of whom testified he was coming along
behind Dye and stopped when he saw Dye stop. The
other was going in the opposite direction and stopped to
see what was going on. Contrarywise Dye testified that
no other truck passed or stopped and that he and Hughes
were all alone. Dye testified Hughes had a tire bumping
instrument in his hand which drivers use to test the infla-
tion of tires. Dye testified Hughes did not mention Dye's
lights but said that he was tired "of this," and that Dye
should get away from Hughes or Hughes was going to kill
him. Hughes also allegedly said that Dye had gotten one
man's job and that if Dye did not get out of his way
Hughes was going to kill him. Dye admitted Hughes did
not raise his hand or the instrument . Dye testified that
after they departed, Dye's car first, Hughes "tailgated"
him for several miles. Hughes denied this.
If Hughes was as angry or as threatening as Dye's
testimony would suggest , no reason appears as to how
Hughes contained himself from making threatening
jestures with his hand and alleged instrument. If in fact
Dye was tailgating Hughes with bright lights, and if in fact
he was tailgating pursuant to orders from Adams, as
Dye's statement to Hughes suggested, surely this
justified some show of anger on Hughes ' part . The record
indicated that some of the drivers genuinely believed that
during the organizational period Dye tailgated the drivers
(who drove much at night ) with bright lights in order to
provoke them into incidents such as the Hughes' incident.
Hughes may have shared this belief, and his words to
Dye were probably designed to let Dye know he wanted
the tailgating and bright lights stopped . However on the
preponderance of the evidence I do not believe that
Hughes threatened to kill Dye. Hughes and the two
drivers who corroborated his testimony in part appeared
to me to be credible witnesses, and by his demeanor as a
witness the 60 -year old Hughes appeared as a soft-
spoken man unlikely to be given to violence or threats of
violence. Further, Dye attributed to Hughes' behavior
out of keeping with his normal conduct in 9 years on the
job for Adams, where he had proven himself to Adams to
be a steady, dependable driver. In fact, a few years be-
fore, Adams himself had suggested to Hughes that he
take the night run he was on at the end between Dothan
and Atlanta . Explaining why he thought he was selected
6 The record was much in conflict as to whether Dye's car was un-
marked or had the customary Markel insignia on it. Resolution of the case
does not require the resolution of this question.
' On the entire record I credit Hughes ' denial of the testimony of Billy
Lee that on the night Hughes "quit work" Hughes told a group of em-
by Adams for this run, Hughes explained that he did not
lose any time, that he did not stop at truck stops, and that
he went and came.
The record suggested a reason why Dye turned in the
report he did on Hughes. Although Dye denied he had
received any request from Adams or Respondent to con-
duct intensified surveillance of the drivers during the self-
organizing campaign , the record strongly suggested that
he did just that. He knew of Adams' strong feelings
against the Union, and obviously sensed that his supply-
ing any information adverse to the drivers would be ap-
preciated. This may have been behind his strong report
against Hughes. The accuracy of this report and the
credibility of his testimony at the hearing is in serious
doubt in view of his apparently intentional misleading of
the county official as to the place of the incident in order
to get a warrant for Hughes' arrest. Also, according to the
testimony of the assistant district attorney, a very credi-
ble witness , Dye told him Hughes had threatened to
"beat his brains out," which is a different threat than Dye
had reported to Adams.7 Further, that Dye knew his own
power over the drivers was revealed in late July in his
statement to a driver that Dye could "get" the job of a
driver of a motor fuel truck who failed to stop at a railroad
crossing.
In any case the evidence is undisputed that Adams had
Hughes' check ready when he called him in to discharge
him and had no intention of hearing Hughes' side of the
incident before severing him. That Adams was blind to
any tailgating by Dye which provoked the incident was
shown by Adams' apparent noncompliance with a request
made to him a few weeks before that Adams speak to the
Markel (Dye was the only regular patroler in the area)
and tell him to dim his lights and not follow so closely.
There was no showing that Adams ever complied with
this request. Further, by advising drivers to "beat hell out
of" those who tailgated them, Adams showed himself to
be not disapproving of actual violence and, it would fol-
low, threats of violence.
As Hughes was in Adams' eye a turncoat on the union
issue, who had refused to come to Adams' office to dis-
cuss the Union, as Hughes had attended the union meeting
Adams and Snell had under surveillance, and as Hughes
was therefore in the group Adams obviously had ear-
marked in his mind for "house cleaning," I believe and
find on the preponderance of the evidence in the entire
record that Adams accepted the accuracy of Dye's report
of the September 20 incident and gave Hughes no open-
minded hearing on the issue , in order to get rid of Hughes
because of his actual and suspected union activities and
sympathies. Thus Adams used the Dye report as a pre-
text to discharge Hughes in order to discourage further
employee activity and sympathy on behalf of the Union.
By this discharge Respondent further violated Section
8(a)(3) and (1) of the Act.
5. The discharge of John H. McKay
McKay worked for Respondent for 8-1/2 years prior to
his summary discharge on August 27, 1967. At the July
24 meeting he received a 7 years' safe-driving award.
ployees in the drivers ' room at Respondent's Atlanta terminal that he had
threatened the Markel man that he was "going to use that pig tail he had in
his hand ." Lee described a pig tail as a piece of insulated cord with a fitting
on the end of it. If believed, this would be yet a third version of Hughes'
alleged threat.
G.F.A. TRANSPORTATION CO. 407
McKay and Thomas Traylor are step-brothers. McKay
signed a union card at Traylor' s home on June 19.
McKay attended the two union meetings on July 9 and
19, the latter of which was under surveillance by Re-
spondent. McKay credibly testified that he talked up the
Union more than any of the other drivers.
On July 25 President Adams asked McKay how the
Union was going, and asked him why he was for the
Union. McKay replied he was for the Union because on
February 8 Central Dispatcher Snell had refused to let
him off from work when his wife was ill and that to
McKay's knowledge President Adams had approved that
action by Snell. During the conversation Adams asked
McKay to try to talk the boys out of the Union, McKay
replying that he could not do it all by himself. By these in-
terrogations, and this interference into the employees'
union affairs, Respondent further violated Section 8(a)(1)
of the Act.
On August 14 President Adams, in the presence of
Snell, rebuked McKay for letting one of the dock workers
at Respondent's Atlanta terminal back McKay's truck up
to the dock. On this occasion they had a discussion, "a
pretty good argument," concerning the Union, during
which McKay told President Adams that if there was
only one vote for the Union at the election, Adams could
assume it was McKay's ballot. Adams replied there might
not be an election and asked what McKay would do then.
McKay replied he did not know.
McKay was discharged on Saturday, August 27, al-
legedly because he had refused to obey a company order
on Tuesday, August' 23. McKay was in a house trailer
maintained by Respondent at Respondent's Pensacola,
Florida,, terminal on Tuesday afternoon and evening rest-
ing and awaiting assignment . Around 7 to 7:30 p.m.
Respondent's dispatcher 'at Pensacola, Hubert Murray,
came to the house trailer, handed manifests to two other
drivers, Collins and Jones, and assigned them to runs to
Atlanta. It was customary to hand manifests to drivers in
making assignments to them. At the same time
Dispatcher Murray told McKay he was to go to the St.
Regis Paper Company , some 20 miles northwest of Pen-
sacola, wait 4 hours while a load was being transferred
from one trailer to another, and then pull the trailer from
there. McKay would not have been paid for this waiting
time, as over-the-road drivers were paid on a mileage ba-
sis. Murray did not give McKay a manifest. McKay
replied that he was not going out to St. Regis to sit 4
hours. On the witness stand Dispatcher Murray admitted
that in this first conversation he gave McKay the alterna-
tive of remaining at the Pensacola terminal until the load
was transferred. Murray contradicted himself concerning
the nature of this alternative. First he testified McKay's
alternative was to remain at the Pensacola terminal until
the trailer was loaded and then go out to St. Regis and
pick it up. On cross-examination he'testified the alterna-
tive was for McKay to remain at Pensacola until the city
driver brought the loaded trailer there. On redirect he
testified, that if McKay had waited in Pensacola until the
load was transferred he then would have "bobtailed" out
to St. Regis and pulled the loaded trailer from there to At-
lanta.
Drivers Collins and Jones had heard the colloquy
between Murray and McKay. Sensing that this might be
a trap for McKay, Collins went back to McKay, advised
him that Jones and Collins thought it might be a trap, and
advised McKay to go to the paper mill and sit all night if
it was necessary. McKay replied that he would discuss it
with Murray.
Within a half hour of his first visit, according to
McKay's credible and credited testimony, Dispatcher
Murray returned to the house trailer and McKay told
Murray that he did not want to go out to the paper mill but
that he would. McKay added that this was the first time
in his 8-1/2 years with the Company that he ever heard of
anybody being asked to go to the paper mill and wait 4
hours. According to McKay's credible and credited
testimony, Murray related that he, Murray, had made a
mistake and sent the wrong trailer to St. Regis, and that
he had to send four men out there to transfer the load onto
another trailer and he would let one of them bring the
newly loaded trailer back. He did not say that he had al-
ready sent the four men out to St. Regis.
Late that night the newly loaded trailer arrived at the
Pensacola terminal, Murray gave McKay a manifest at
11:30 p.m., and McKay pulled the trailer to Atlanta, ar-
riving on time the following morning, Wednesday. He ar-
rived back in Dothan on Thursday and on Friday was
dispatched again to Atlanta, from which he rearrived in
Dothan about 3 o'clock Saturday morning.
About 9 o'clock Saturday morning he was summoned
to report to Adams and President Adams summarily
discharged him, allegedly for disobeying a company
order. When McKay asked him what order, President
Adams refused to divulge, stating, according to McKay's
credited testimony, that he did not have to tell him
anything else and that that was all he had to tell him.
McKay refused his proffered final check, saying that the
union man had told them not to accept a check if they
were discharged. Adams replied he had better take the
check because McKay would be forbidden to come onto
company property "tomorrow."
Respondent contended that McKay was discharged for
refusing to pick up the trailer at St. Regis, that President
Adams learned on Friday of this refusal by rumor from
some unidentified drivers, verified it ,by telephone call to
the Pensacola terminal manager, Mr. Ritchie, and
discharged McKay for refusing a direct order Adams had
given by teletype on Tuesday: that the next driver out of
Pensacola should pick up a load at St. Regis, rather than
at the Pensacola terminal.
The record established that although McKay initially
refused to go out to St. Regis and wait 4 hours, he
changed his mind and expressed willingness in the second
conversation with Murray to go out there. Murray un-
derstood in the second conversation that McKay was
changing his position and was now willing to make the
pickup. In effect at this time Murray excused McKay
from making the pickup at St. Regis and permitted him to
pull the trailer from Pensacola. At the latest this conver-
sation' occurred at 9 to 9:30 o'clock that night. As McKay
received the manifest and left the terminal with the trailer
at 11:30 that,night, and as Dispatcher Murray knew the
trailer was due in Atlanta the following morning, an 8-
hour drive, away, I conclude that Murray did not permit
the trailer to linger in Pensacola and that it arrived at Pen-
sacola just a few minutes before 11:30 p.m. Thus if at 9 or
9:30 p.m. Murray still wanted McKay to pull that trailer
out of the paper mill; there was plenty of time for McKay
to "bobtail" the 15 miles out there before it was brought
in and to haul it from there. Instead Murray decided to let
the city driver bring it in and to let McKay take it from
Pensacola.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That Murray took no personal or official offense at
McKay's initial refusal, did not consider it insubordinate,
and in effect condoned it, was shown by the fact that
Murray made no report of the incident and did not intend
to unless and until he was asked, as he testified.
There is some doubt on the record as to whether the
teletype order from the Atlanta terminal to the Pensacola
terminal directing that the load be transferred also or-
dered that an over-the-road driver pick it up at St. Regis.
The teletype message itself was not put in evidence and
was not shown to be unavailable. Dispatcher Murray
testified that the order was to transfer the load "and put
it on a GFA trailer and they will come out that night in-
stead waiting for the next day." The italicized words ap-
pear to relate to the merchandise on the trailer and to its
getting on the way to Atlanta that night rather than the
next day as planned by Murray until Dothan overruled
him. If Murray had considered the teletype an order that
the over-the-road driver make the pickup at St. Regis, no
reason appeared why Murray would not have told
McKay in the second conversation to go out to St. Regis
and make the pickup there. Certainly if Murray had con-
sidered the teletype message an order to pick up at St.
Regis whose disobedience could cost McKay his job, no
reason appeared as to why Murray would not have sent
him out there in the second conversation. Murray was not
shown to be antidriver or antiunion or anti-McKay.
Further, Adams summarily discharged McKay without
ever discussing what had happened with Murray and
without having all the facts. Adams testified that on
Friday he heard "rumors" from drivers that a driver had
refused to go out from Pensacola to the St. Regis paper
mill and haul the load from there. Adams incredibly
testified that he did not remember the names of his in-
formants, and that he was not told the identity of the driver
involved . It is inconceivable that on September 21, about
2 weeks before the election where 17 drivers voted
against the Union, that the "rumor" spreaders were not
antiunion drivers and that they failed to identify the
strongly prounion McKay as the driver involved.
According to Adams, he then telephoned the manager
of the Pensacola terminal , told him he had heard "one of
the drivers" had disobeyed an order to pick up a load at
St. Regis, and asked the manager , Ritchie, to check on it
"and he said that is correct." Murray credibly testified
that he had no conversation with Ritchie on this subject
except that Ritchie asked Murray if McKay refused and
Murray replied in the affirmative. The fact that Ritchie
mentioned McKay's name is added proof that Adams
knew McKay was the driver and asked Ritchie specifi-
cally if McKay refused. Ritchie did not testify and was
not shown to be unavailable.
Thus when Adams discharged McKay he did not know
that after first refusing McKay had changed his mind and
expressed willingness to go, and that at this point Murray
had permitted McKay to remain in Pensacola and to pull
the trailer from there. In any case Adams must have
known and certainly had access to records which would
have shown, that in fact McKay pulled the load to Atlanta
and that it arrived on time.
The fact that President Adams made a big point that
this was a direct order from him and that McKay had
refused to obey it, when before the situation tightened
between the Company and the prounion drivers a relaxed
relationship had prevailed, is added proof that Adams
was out to eliminate McKay and seeking a pretext to ac-
complish it, because of McKay's union sympathy and to
discourage further support for the Union and to defeat it
at the forthcoming election. No other conclusion explains
Adams' statement at the severance interview that McKay
would be barred from the property "tomorrow." Upon
the preponderance of the evidence in the entire record I
conclude that McKay's discharge for these reasons was
a further violation by Respondent of Section 8(a)(3) and
(1) of the Act.
6. The severance of Buren R. Kirksey
Between July 1, 1966, and the hearing herein in early
May 1967, Respondent hired six over-the-road drivers,
four including Kirksey in July 1966, one on August 29,
1966, and one on February 4, 1967. All were hired as ex-
tra, extra drivers. This was a regular classification
Respondent had for over-the-road drivers who pulled
runs the extra drivers could not handle. Although their
work was necessarily irregular, they had a status with
Respondent greater than no status at all. It was un-
derstood that they would be used when needed.
Of these six new hires, all but Kirksey were still work-
ing for Respondent in early May 1967. Kirksey was
hired, used on only three runs, and was never given any
further assignments.
Chief Dispatcher Snell testified that the volume of
Respondent's work is somewhat seasonal , that the "rush
season" is in the summer, beginning in "March, April,
May, June, July, August." He said it begins dropping off
in August. There was no testimony whatsoever about any
alleged busy or rush season in 1966, whether there was
one, or when it began or ended. The record raises the
question as to why Respondent hired four new drivers in
July 1966, one the third week and three the fourth week,
if the busy season was to begin dropping off in August.
Adams' statement to Kirksey on July 28 suggests the
answer.
Kirksey credibly testified and Adams denied that in
Kirksey's employment interview on July 28 Adams told
him that he would "overpower" the Union one way or the
other, and that they were "fixing" to hire some more men.
(This sentiment was consistent with Adams' August 14
threat to an employee, as has been seen above, that if the
Union came into the plant, Respondent would hire more
drivers.) The testimony of Kirksey, Adams, and Snell
concerning this interview shows beyond question that
one of the main subjects on Adams' mind in the interview
was Kirksey's attitude towards the Union. Adams raised
the question of the Union, asking if Kirksey knew that
Respondent was having a union problem, and inter-
rogated Kirksey as to his attitude toward the Union.
Kirksey replied that he knew of Respondent' s union
problem, that he had worked for a union company in
Columbus, Georgia, that he had been in the Union for 6-
1/2 years, and that the Union has its good points and its
bad points. It was at this time that Adams replied, as he
testified, that as far as he was concerned the Union had
no good points at all. Kirksey's testimony was undenied
that Adams said that he had his doubt about Kirksey. The
interview ended with Adams saying that Respondent
would use Kirksey when they had some extra runs. As
Kirksey left Adams told him he wanted him "to vote him
a big ole no" at the election.
The following day, July 29, Snell had Kirksey fill out
an application blank, asked him for his doctor's cer-
tificate, and another company man gave him a driver's
test. Then in the next 3 days Kirksey was assigned from
G.F.A. TRANSPORTATION CO.
Dothan on two trips to Atlanta and one to Florida. He
was called back to Dothan from Florida empty, and has
never been given an assignment since, although he went
back several times seeking further runs. According to
Kirksey's credible and credited testimony, Snell told him
upon his return from Florida that Adams told Snell they
would have to let Kirksey go, that they had too many
drivers. Snell gave Kirksey a check.
The General Counsel contended and proved that Kirk-
sey was hired on a permanent basis, although Respondent
contended otherwise. Kirksey had worked a couple of
days as a dockworker for Snell a year and a half before
and ever since then had been contacting Snell seeking an
over-the-road job. Kirksey had been a truckdriver for 14
years. He contacted Snell seeking a driving job numerous
times in 1965 and 1966.
When Kirksey was finally hired by Respondent in July
1966, it was Snell who took the initiative to get in touch
with Kirksey and to offer him a job. Kirksey was in Mis-
souri driving for another employer. In view of Kirksey's
long efforts to come to Respondent as a driver, Snell ob-
viously knew that Kirksey wanted a permanent job with
Respondent. Further, clearly Kirksey would not leave his
employment in Missouri to return and make only three
runs for Respondent. Kirksey's job in Missouri would
probably have lasted through August.
That Kirksey was given a permanent job was shown
further by the fact that he was asked to fill out an applica-
tion form, which would appear to have been unnecessary
and unlikely if he was being engaged to pull only three
runs for Respondent. Presumably this application in-
cluded a list of his former employers, including the union
company for which he had worked in Columbus, Georgia,
which company was clearly easily accessible to Adams
by telephone. Further, Adams' request for a "no" vote at
the election showed that Adams expected Kirksey to be
around at election time.
That Kirksey was given a permanent job was further
shown by the fact that all the extra, extra drivers hired at
or about the same time were kept on and were still work-
ing for Respondent at the time of the hearing some 10
months later.
At the General Counsel's request Respondent
produced a list containing the names and dates of hire of
all over-the-road drivers hired by Respondent since July
1, 1966. The parties stipulated that the list correctly set
forth the names and dates of hire of all such employees.
This list and stipulation showed that Kirksey was hired
July 29, and that Ira Varden was hired August 29, 1
month later. Although Respondent was in touch with
Varden prior to August 29, there was no clear proof that
on July 29 Respondent knew when Varden would report
and be hired.
Incredibly Snell testified in substance that Kirksey was
let go on August 1, because Respondent had no more
extra runs for him in view of the fact that Respondent had
hired Varden. Varden's date of hire was August 29.
There was no evidence that Respondent could plan up to
28 days in advance how many extra runs it would need
drivers for during the 28 days. To the contrary extra
drivers received their assignments only a matter of hours
before they,were expected to start driving their load.
President Adams testified that Respondent does not store
any freight and that "we know where we are going to have
to deliver it (freight) after we get it.... We are a motor
common carrier, which handles general freight."
409
In any case Respondent failed to show that its volume
of extra, extra runs fell off just after Kirksey was hired; or
that Respondent learned just after Kirksey was hired that
the volume of extra, extra runs was going to fall off. The
fact that after Kirksey was let go, Varden was hired on
August 29, and another driver was hired February 4,
1967, proves, to the contrary, that there was enough ex-
tra, extra running to keep two additional drivers busy
after Kirksey was discharged.
President Adams questioned all six of the over-the-
road drivers hired after July 1, about their union sym-
pathies. Insofar as the record shows, of these six, Kirksey
was the only one who said a good word for the Union or
who had worked for a "union" company. The only con-
clusion permitted by the record is that Kirksey was let go
after three runs because President Adams decided in the
meantime that Kirksey was in favor of the Union, or at
least not a safe risk, and would be a vote for the Union if
permitted to remain. As the record established, at this
time President Adams was interested in hiring drivers
who would vote against the Union, not those who would
vote for it. The petition was filed July 22, and between
then and the October 10 election, Adams discharged four
prounion drivers and hired four drivers of whom Kirksey
was the only one shown by the record to have known
anything about the Union or to have any sympathy
towards it.
This conclusion is not nullified by the fact that Adams
permitted Kirksey to pull a few runs after he learned of
Kirksey's previous employment by a "union" company
and of Kirksey's capacity to see something good in the
Union. These several days gave Adams time to check
into Kirksey's background, if he wished to, and gave him
time to think about Kirksey. For Adams to have refused
employment to Kirksey in the employment interview im-
mediately after learning of his union background would
have been too obviously an antiunion move for Adams;
despite his threats, in his actual carrying them out he
bided his time and waited for seemingly good causes to
make his antiunion discharges.
Upon the above facts and considerations, and upon the
preponderance of the evidence in the entire record con-
sidered as a whole, I believe and find that Respondent
discharged Kirksey on or about August 1, 1966, because
it suspected him of sympathy towards the Union, because
it wished to eliminate a prounion vote in the forthcoming
election, and in order to discourage further driver sym-
pathy and support for the Union, Respondent thereby
further violating Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
IH, above, occurring in connection with Respondent's
operations described in section I, above, have a close, in-
timate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in the un-
fair labor practices set forth above, I recommend that it
cease and desist therefrom and that it take certain affirm-
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ative action designed to effectuate the policies of the
Act.
Respondent having unlawfully discharged Thomas
Traylor, John McKay, Arthur Hughes, and Buren R.
Kirksey because of their actual or suspected union activi-
ties and because of the other reasons stated above, and
not having offered them reinstatement, I recommend that
Respondent offer to these four employees immediate and
full reinstatement to their former or substantially
equivalent positions8 without prejudice to their seniority
and other rights and privileges and make them whole for
any loss of pay they may have suffered by reason of the
discrimination against them by payment to each of them
of a sum of money equal to that which he normally would
have earned as wages from the date of his discharge, the
date of the discrimination against him, to the date when,
pursuant to the recommendations herein, Respondent
shall offer him reinstatement, less his net earnings during
said period (Crossett Lumber Company, 8 NLRB 440,
497-498), said backpay to be computed on a quarterly
basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289. The backpay
obligation of Respondent shall include the payment of in-
terest at the rate of 6 percent to be computed in the
manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716. As provided in the Woolworth case, I recom-
mend further that Respondent make available to the
Board on request, payroll and other records in order to
facilitate the checking of the amount of the backpay due.
Kirksey's earnings shall be considered to be the average
earnings of all the extra, extra drivers (including but not
limited to James Rice, Willie Hughes, Norman Burgess,
Ira Varden, and Elmer Adams, the five who were hired
from July 1, 1966, to early May 1967) from August 1,
1966, until the date Respondent shall offer Kirksey rein-
statement.
In view of Respondent's flagrant violations of the Act,
I recommend a broad cease-and-desist order.
Upon the basis of the foregoing findings of fact and the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. G.F.A. Transportation Company, of Dothan,
Alabama, is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Teamsters, Chauffeurs, Warehousemen & Helpers
Local Union No. 991, affiliate of International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, Ind., is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of
employment of Thomas Traylor, John McKay, Arthur
Hughes, and Buren R. Kirksey, thereby discouraging
membership in the above-named Union, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
4. By numerous acts including many threats,
warnings, promises, interrogations, advises, engaging in
and giving the impression of engaging in surveillance, in-
terference, restraint, and coercion, soliciting employees
to form a committee to stop the Union and to stop the
Union by signing petitions and in other ways, urging em-
ployees not to attend union meetings, threats to sell
Respondent and to move it out of Dothan, 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 labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the preponderance of the
evidence in the entire record considered as a whole, I
recommend that G.F.A. Transportation Company, of
Dothan, Alabama, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discouraging membership in Teamsters, Chauf-
feurs, Warehousemen & Helpers Local Union No. 991,
affiliate of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, Ind.,
or any other labor organization of its employees, by dis-
criminating in regard to their hire or tenure of employ-
ment or any term or condition of employment.
(b) Making any threats, warnings, advises, promises
to or interrogations of employees because of their union
activities, engaging in or giving the- impression of engag-
ing in surveillance, soliciting employees to form a com-
mittee to stop the Union or to stop the Union by signing
petitions and in other ways, urging employees not to at-
tend union meetings, threatening to sell Respondent and
to move its place of business, in order to defeat the
Union.
(c) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights to
self-'organization, to form labor organizations, to join or
assist Teamsters, Chauffeurs, Warehousemen & Helpers
Local Union No. 991, affiliate of International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, Ind., or any other labor organization, to
bargain collectively through representatives of their own
choosing and to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Offer reinstatement to Thomas Traylor, John
McKay, Arthur Hughes, and Buren R. Kirksey, in ac-
cordance with the recommendations set forth in "The
Remedy" herein.
(b) Make whole Thomas Traylor, John McKay,
Arthur Hughes, and Buren R. Kirksey, for any loss of pay
they may have suffered by reason of Respondent's dis-
crimination against them, in accordance with the recom-
mendations set forth in "The Remedy" herein.
(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, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Notify the employees herein found discriminated
against if presently serving in the Armed Forces of the
United States of their right to full reinstatement upon ap-
plication in accordance with the Selective Service Act
8 The Chase National Bank of the City of New York , San Juan , Puerto
Rico, Branch , 65 NLRB 827
G.F.A. TRANSPORTATION CO.
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(e) Post at its offices, drivers rooms, and yard in
Dothan, Alabama, copies of the attached notice marked
"Appendix." Copies of said notice, on forms provided
by the Regional Director for Region 15, after being duly
signed by the Respondent's authorized representative,
shall be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or
covered by any other material.
(1) Notify the Regional Director for Region 15, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.10
In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
11 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 15 , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
After a trial at which all sides had the chance to give
evidence, a Trial Examiner of the National Labor Rela-
tions Board found that we, G.F.A. Transportation Com-
pany, violated the National Labor Relations Act, and or-
dered us to post this notice to inform our employees of
their rights.
The Act gives all employees these rights:
To organize themselves
To form, join, or help unions
To bargain as a group through a representa-
tive they choose
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things
411
The Trial Examiner has also ordered us to assure our
employees that:
WE WILL NOT do anything that interferes with
these rights.
You are free to join the Teamsters Union or any
of its Locals, or any other union, and, by.majori-
ty choice, to select any union to represent you in
bargaining with us.
WE WILL NOT fire you or look for reasons to fire
you or threaten to fire you, or treat you differently in
any way, because you join or favor a union or help a
union organize our employees.
WE WILL NOT spy on your union meetings or union
activities or do or say anything which will give you
the impression that we are spying.
WE WILL NOT threaten if the Teamsters represent
you we will go out of business or move our terminal
out of Dothan, or threaten any other action contrary
to your interest.
WE WILL NOT make any threats or warnings to
you, or give you any advises, or make any promises
to you, in connection with your union activities.
WE WILL NOT ask you any questions about your
union activities or views.
WE WILL NOT ask you to stop the Teamsters or
any other union by forming a committee or by signing
petitions or by doing anything else.
WE WILL NOT urge you not to attend union
meetings.
The Board Trial Examiner found that when we fired
Thomas (Buster) Traylor, John McKay, Arthur
Hughes, and Buren R. Kirksey, we did this because
these employees were for the Union and to
discourage you from being for the Union. The Trial
Examiner found that this violated the Act.
WE WILL give Traylor, McKay, Hughes, and Kirk-
sey their jobs back, and WE WILL make up the pay
they lost and also pay them 6 percent interest.
G.F.A. TRANSPORTATION
COMPANY
(Employer)
Dated By
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, T6024 Federal
Building (Loyola), 701 Loyola Avenue, New Orleans,
Louisiana 70113, Telephone 527-6361.