Gulfport Transport Co.

National Labor Relations Board - Board Decisions

Jun 28, 1949

84 N.L.R.B. 613 (N.L.R.B. 1949)

In the Matter of GEORGE V. KUSSMANN, JR. D/B/A GULFPORT TRANS..
PORT COMPANY and- LOCAL 270, GENERAL TRUCK DRIVERS, CHAUF-
FEURS, WAREHOUSEMEN & HELPERS, AFL
Case No. 15-CA-57.-Decided June 28,1949
DECISION
AND
ORDER
On February 28, 1949, Trial Examiner Joseph L. Hektoen issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that he cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Reynolds, Murdock, and
Gray].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in this
case , and hereby adopts the findings, conclusions, and recommenda-'
tions of the Trial Examiner, insofar as they are consistent with this
Decision and Order.
1. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (1) of the Act by the following acts and conduct :
a. Myrick's statements to Abe Palmer to the effect that the em-
ployees should postpone action concerning the Union until some later
date, as the Respondent intended to better their working conditions
upon moving to new headquarters. We believe such statements vio-
late the Act by promising benefits as an alternative to union affiliation.,
b. The Respondent's promise of benefit during the Union's organ-
izational drive to Pomiston Lyons, should Lyons at that time "forget
I See Matter of Union Products Company, 75 N. L. R. B. 591, 593 ; and Matter of T77e
Bailey Company, 75 N. L . R. B. 941, 942.
84 N L. R. B., No. 71.
613
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about the union." The Respondent's main objection to this finding
centers on the Trial Examiner's credibility rulings as they relate to
Lyons' testimony on this matter. The Board has frequently stated that
as it is the Trial Examiner, and not the Board, who has the oppor-_
tunity of observing the demeanor of witnesses who are testifying, great
weight will be attached to a Trial Examiner's credibility findings, and
they will not be overruled unless they clearly appear to be erroneous 2
Upon reviewing Lyons' entire testimony, in the light of the Respond-
ent's objections, we are not persuaded that the Trial Examiner's rul-
ings in question are erroneous.
c. The Respondent's refusal to hire Eugene F. Buhler because of
Buhler's membership in the Uni6n.3 ' The Respondent contends, in
effect, that the Board is without power to make an unfair labor prac-
tice finding involving Buhler as the complaint did not specifically
allege that Buhler had been refused employment by the Respondent.
We do not agree. The Respondent does not claim surprise at the
introduction of evidence concerning Buhler. Indeed, the Trial Exam-
iner at the beginning of the hearing informed the Respondent that
a.continuance'would be granted should the Respondent be unprepared
to meet any issue unexpectedly developed during the hearing. The
Respondent in the case of Buhler requested no continuance, but in-
stead cross-examined Buhler and offered affirmative testimony in re-
buttal. We therefore find that the issue of the Respondent's unlawful
refusal to hire Buhler was fully litigated and that procedurally the
Respondent is not prejudiced by the Board's finding on that issue.
d. The interrogation of John H. McCoury concerning his union
status by Manager Lewis when McCoury was hired by the Respondent
early in June 1948. Contrary to the contention of the Respondent,
we believe that the language of the complaint was sufficiently broad'
to include this conduct of Lewis, and, as the matter was fully litigated,
we perceive no prejudice to the Respondent resulting from our finding
concerning Lewis' conduct.
e. Myrick's- speech to the-Respondent's employees on July 9, 1948,
which we find contains threats 'of reprisal and, alternately, promises
of benefit.
2. We agree with 'the Trial Examiner that Ray Williams McGee
Quinn was discriminatorily discharged on July 10, 1948, in violation
3 Matter of Lancaster Foundry Corporation , 75 N. L. R. B. 255, 256 and cases cited.
8 We disagree with the Trial Examiner' s reasons for not finding a violation of Section 8
(a) (3) with respect to Buhler As will appear below, we believe that the issue as to
Buhler was fully litigated, but under the circumstances of this case , we find it unnecessary
to,determine whether or not the Respondent's conduct violated Section 8 (a) (3) as no
exception was taken to the Trial Examiner's failure to find a violation of Section 8 (a) (3),
or to his failure to recommend other relief.
•GULFPORT TRANSPORT COMPANY ' 615
of Section 8 (a) (3) of the Act. The^Respondent contends that Quinn
was discharged because he had been involved in several accidents in
which, the Respondent's equipment was damaged and because he had
been an unreliable worker due to frequent absences. 'The evidence in
the record reveals the shallowness of this defense. It is true that
Quinn was absent-several days during the week preceding the dis-
charge, but such absences, as the Respondent well knew, were directly
attributable to an injury incurred in the course of his employment
with the Respondent. In any event, Manager Hosey himself testified
that absences due to illness were not cause for discharge.
In regard to the accidents, although the Respondent contends that
Quinn was involved in three accidents, there is a complete lack of
persuasive evidence in the record to show that the two door incidents
were in fact accidents, or that Quinn was responsible for the slight
damage to the truck door on those two occasions. In view of this and
in view of the Respondent's spontaneous casual treatment of the
damage of the truck on the occasions in question, we agree with the
Trial Examiner that the incidents were "of such minor import as to
have had no influence upon Quinn's discharge." Although the record
discloses that Quinn was involved in an accident on July 10, 1948, this
accident occurred a month before Quinn was discharged, and Quinn
was immediately demoted as a reprimand for the accident. As Quinn
had long since been reprimanded for his part in the accident, we be-
lieve that the July 10 accident was not the motivating cause for his
discharge on August 10, 1948. This belief becomes even more firm
when we realize that the accident was not contemporaneously asserted
on August 10, 1948, as a reason for Quinn's discharge.
On the other hand, the evidence shows that Quinn was the leader
of the Union among the Respondent's employees and that Quinn was
discharged at the height of the Union's organization drive on the day
after the Respondent learned that a representation petition involving
its employees had been filed with the Board. Upon discharging Quinn,
Hosey stated that he was being discharged because he was causing
the Respondent "a lot of trouble." According to Quinn's credited
testimony, Hosey then mentioned union cards and referred Quinn to
the Union for help. In view of (1') the timing of Quinn's discharge;
(2) the tenuous grounds asserted as reasons for Quinn's discharge;
and (3) the Respondent's strong anti-union animus as disclosed by
the entire record in this proceeding, this reference to the Union at the
time of'Quinn's discharge is most significant and it convinces us that
Quinn was discharged because of his activity in behalf of the Union.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER.-
Upon the entire record in the case, and pursuant to Section 10 (c)^
of the National Labor Relations Act,, as amended, the National Labor-
Relations Board hereby orders that the Respondent, 'George V. Kuss-
man, Jr. d/b/a Gulfport Transport Company, New Orleans, Louisiana,
and his officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Local 270, General Truck Drivers,,
Chauffeurs, Warehousemen & Helpers, AFL, or in any other labor
organization of his employees, - by discriminatorily discharging or-
refusing to reinstate any of his employees, or by discriminating in any
other manner in regard to their hire and tenure of employment, or any-
term or condition of employment; and
(b) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Local 270, General Truck Drivers,,
Chauffeurs, Warehousemen & Helpers, AFL, or any other labor or-
ganization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, and to refrain,
from any or all of such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor-
organization as a condition of employment as authorized in Section 8-
(a) (3) of the amended Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Ray Williams McGee Quinn immediate and full rein-
statement to his former or a substantially equivalent position without
prejudice to his seniority or other rights and privileges ;
(b) Make whole said Ray Williams McGee Quinn for any loss of'
pay he may have suffered by reason of the Respondent's discrimination,
against him, by payment to him of a sum of money equal to the
amount he normally would have earned as wages from the date of
discrimination to the date of Respondent's offer of reinstatement,, less
his net earnings during said period:
(c) Post at his places of business in New Orleans, Louisiana,. and'
Gulfport, Mississippi, copies of the notice attached hereto and marked'
"Appendix A."' Copies of said notice, to be furnished by the- Re-
* In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words, "A DECISION AND ORDER" the words, " DEGREE:
OF THE UNITED STATES COURT OF APPEALS ENFORCING."
GULFPORT TRANSPORT COMPANY 617
gional Director for the Fifth Region, shall, after being duly signed
by the Respondent or his representative, be posted by the Respondent
immediately upon receipt thereof and maintained by him for a period
of sixty (60) days thereafter in conspicuous places, including all
places where notices to employees are customarily posted in each of
his said two places of business. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced,
or covered by any other material; and
(d) Notify the Regional Director for the Fifteenth Region, New
Orleans, Louisiana, in writing within ten (10) days from the receipt
of this Decision and Order what steps the Respondent has taken to
comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, I hereby notify my employees that :
I WILL NOT in any manner, interfere with, restrain or coerce
my employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist LocAL 270, GENERAL
TRUCK DRIVERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS, AFL,
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, and to refrain from any or all of such activities
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment as authorized in Section 8 (a) (3) of the Act.
I WILL OFFER to the employee named below immediate and full
reinstatement to his former or a substantially equivalent position
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make him whole for any loss of pay
suffered as a result of the discrimination.
Ray Williams McGee Quinn .
All my employees are free to become or remain members of the
above-named union or any other labor organization. I will not dis-
criminate in regard to hire or tenure of employment or any term or
618 DECISIONS OF. ,NATIONAL-- LABOR RELATIONS BOARD
condition, of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
'GEORGE V. KUSSMANN, JR. D/B/A,
GULFPORT TRANSPORT COMPANY,
Employer.
Dated -------- By ------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and, must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Messrs. Richard C. Keenan and Jerold B. Sindler, for the.General Counsel.
Messrs. Robert A. Ainsworth, Jr., and Harold R. Ainsworth, of New Orleans,
La , for the Respondent.
Messrs. Fred Cassibrey and James,•Schwehm, of New Orleans, La., for the
Union.
. STATEMENT OF TIIE CASE
Upon a charge filed on July 12, 1948, -by Local 270, General Truck Drivers,
Chauffeurs, Warehousemen & Helpers, AFL, herein called the Union, the General
Counsel of the National Labor Relations Board,' by the Regional Director for
the Fifteenth Region (New Orleans, Louisiana), issued his complaint dated
November 24, 1948, against George V Iiussuiann, Jr.' d/b/a Gulfport Transport
.Company, herein called the Respondent, alleging that the Respondent had en-
gaged in and was engaging in unfair labor practices within the meaning of Sec-
tion 8 (a).(1) and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, as amended by the Labor Management Relations Act, 61 Stat.
I61, herein called the Act. Copies of the complaint and the charge, accompanied
by notice of hearing_'thereon`'were duly served upon the Respondent, and the
Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the Respondent: (1) on July 10, 1948, discharged and thereafter refused
to reinstate Ray Williams McGee Quinn' because, of his membership in and
activities on behalf of the Union and because he engaged in concerted activities
with other employees for the purposes of collective bargaining and other mutual
aid and protection; (2) by E. J. Myrick and T. B. Hosey, his officers and agents,
from about July 1, 1948, (a) interrogated employees about their own and others'
membership in and activities on behalf of the Union, (b) warned and threatened
them with discharge and loss of benefits because of membership in and activities
on behalf of the Union, (c) threatened to cease operations if the Union succeeded
in organizing them, and (d) made promises of and awarded benefits to them
upon condition that they cease their union activities; and (3) by such acts
interfered with, restrained, and coerced his employees in the exercise of rights
guaranteed in Section 7 of the Act.'
1 The General Counsel and his representatives at the hearing are herein called the Gendral
Counsel and the National Labor Relations Board is called the Board.
2 The Respondent's name is spelled as amended at the bearing.
I Quinn's full name as amended at the hearing.
4 An allegation to the effect that the Respondent had blacklisted Quinn was stricken at
the hearing on motion of the General Counsel.
GULFPORT TRANSPORT COMPANY 619
The-Respondent thereafter filed his answer admitting the allegations of the
complaint with respect to his business, but denying the commission of any
unfair labor practices.
Pursuant to notice, a hearing was held on December 14, 1948, at New Orleans,
Louisiana, before the undersigned Josef L. Hektoen, the Trial Examiner duly
designated by the Chief Trial Examiner. The General Counsel, the Respondent,
and the Union were represented by counsel and participated in' the hearing.
Full opportunity to' be heard; to' examilie and cross-examine witnesses, ands to
introduce evidence bearing upon the issues was afforded all parties. At the
opening of the hearing, counsel for the Respondent moved for a bill of particulars
of the complaint with respect to the alleged acts and statements'of Myrick and
Hosey. The motion was denied At the close of the hearing, the General
Counsel moved to conform the pleadings to the proof with respect to formal
matters. The motion was allowed without objection. The parties waived oral
argument and although they were extended an opportunity to file briefs, none
was received by the undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, George V. Kussmann, Jr., is an individual doing business as
Gulfport Transport Company He maintains places of business in New Orleans,
Louisiana, and Gulfport, Mississippi, and is engaged in hauling and transporting
freight by motor transport between those cities. For this purpose he operates
motorized equipment in and through the States of Louisiana and Mississippi
and annually hauls more than two million pounds of freight in and through
said States. The Respondent, admits that, he is, engaged in commerce, within
the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Local 270, General Truck Drivers, Chauffeurs, Warehousemen and Helpers,
AFL, is a labor organization affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, AFL, and admits em-
ployees of the Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. Background and chronology of events
The Respondent began, his operations'in 1947 and was himself in active charge
of the New Orleans terminal. On June 3, 1948, that terminal was moved to
more adequate quarters and the Respondent relinquished his duties in connec-
tion therewith, being succeeded by one Allan Lewis. 'On the same day, E. J.
Myrick, who was and is in charge of the Gulfport terminal" and who owns and
maintains the equipment utilized by'the Respondent under lease from him, took
charge of the Respondent's operations and became the dominant figure in the
enterprise!
5 The equipment- consists of-three tractors, six trailers , and' seven pickup trucks. Russ-
mann, on the witness stand, stated that he knew nothing of the matters in litigation herein
and that he had left the'entire matter in the hands of Myrick.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 8, Lewis hired Quinn, whose discharge is hereinafter considered, at
New Orleans as an over-the-road driver. On' June 21, Myrick employed T. B.
Hosey as successor to Lewis in charge of the New Orleans terminal. Lewis was
a supervisory employee and both Myrick and Hosey admittedly are supervisors,
within the meaning of the Act.
Late in June, the Union began organizing the Respondent's six or seven New
Orleans employees and on July 8, the Respondent, through Hosey, received notice
from the Regional Office of the Board that the Union had filed a petition for
certification as representative of the employees. On July 9, Myrick addressed
the New Orleans employees respecting the Union and his plan to move to another
terminal facility in the near future. On July 10, the Respondent discharged
Quinn.
On July 12, the Union withdrew its petition and filed the charge upon which
this proceeding its based. On August 7, the Respondent moved the New Orleans
terminal to its present location. As to the Respondent, the Union, except for
this proceeding, is presently dormant or moribund.
B. Interference , restraint , and coercion
Employee John H. McCoury credibly testified , and the undersigned finds that,
when he was hired by Manager Lewis of the New Orleans terminal , the latter
asked him whether he was a member of the Union and that he answered that,
while he formerly had been , he was not then a union member.e
Former employee Pomiston Lyons testified without denial , and the under-
signed finds that , on two occasions during the short period of the Union 's organi-
zational drive, Myrick inquired of him as to what was happening with reference
thereto, and that when Lyons answered that he knew nothing of it, told him that
the Respondent T did not want a union at that time, that he was unable to pay
higher wages, that he desired that the employees "forget about the union and stick
with" him until such time as he was able to obtain new terminal facilities in New
Orleans whereupon he would improve both the rates of pay and the working con-
ditions of the employees.
Former employee Abe Palmer testified without denial , and the undersigned
finds that , during the union campaign , Myrick spoke to him in much the same
vein as he had to McCoury in the presence of two or three unidentified persons
..and that Palmer thereafter asked for and received a $5 per week increase in pay
from the Respondent.
Eugene F. Buhler, a member of the Union and a truck driver who had worked
for another trucking concern with him in the days when Myrick was himself
a driver, testified that shortly before the Union's drive began , he applied for
a position with the Respondent through Myrick at Gulfport ; that Myrick in-
formed him that the Respondent was in need of a dock -man but that he must,
before hiring Buhler , consult "an agent" and would be in touch with Buhler
*e McCoury testified that he was hired by the Respondent in May 1948 . Because Lewis
did not take over at New Orleans until June 3, it is found that the conversation took place
early in June. McCoury's testimony leaves some .doubt as to whether or not Myrick was
also present when he was hired. Myrick denied that he was, and the undersigned finds
accordingly. Myrick testified, however, that the Respondent "wasn't suposed to hire any
union man. . . We wasn't in the union, so we wasn' t hiring union men." On the
basis of Myrick's testimony, and upon the entire record in the case, including the fact that
the incident was fully litigated , the above finding is made despite the absence of a specifi-
cation as to Lewis in the complaint . Lewis did not testify.
T Kussmann and Myrick are difficult of differentiation as of June 3, 1948, when the former
withdrew and the latter came forward.
'GULFPORT TRANSPORT COMPANY 621
on the, following. day ; ithat Buhler got in touch with him on that day and, that
Myrick then stated that. Buhler was a member of the Union ; that Buhler there-
upon repaired to New :Orleans; spoke to ,Manager Hosey, and was informed by
him that he must await the arrival of Myrick before being considered for a job ;
that he finally was able to speak to Myrick on what is found to be the after-
noon of July 9, when Myrick had notice of the Union's petition and, as he in-
formed Buhler, was about to address the New Orleans employees ; that Myrick
then told him that the Respondent was not "ready" for the Union but would be
when he had achieved to the proposed new terminal facilities. Buhler was never
employed by the Respondent.
Myrick denied the allegations of the complaint in language of legal conclu-
sion and testified that he failed to hire Buhler only because he had no place for
him. In the light of Myrick's own testimony that the Respondent was not hiring
union members because "We wasn't in the union," Buhler's undenied testimony
that Myrick told him at Gulfport that the Respondent was in need of a dock-
man, the clear evidence throughout the record that the Respondent was chroni-
cally undermanned in New Orleans during the period in question, and upon the
entire record, the undersigned is persuaded and finds that Myrick spoke to
Buhler as the latter testified and that the Respondent, through Myrick, failed
to employ Buhler, not because he did not require his services, but because of
Buhler's union membership!
On July 8, when Hosey received notice of the Union's having filed its petition
from the Board's local office, he notified Myrick thereof and was told by the
latter to keep the notificaition and that he would be in New Orleans on the fol-
lowing day, July 9. It had been Myrick's habit since June 3, to pay weekly
visits to the New Orleans terminal for, among other things, Friday safety meet-
ings with the employees. He did so on Friday, July 9.
Shortly after his arrival on that day, a Board Field Examiner telephoned
Myrick and asked that the latter visit the Regional Office on the same afternoon
regarding the Union's petition. Myrick replied that he could not do so on
account of the press of business but promised to send in the papers : questionnaires
regarding appropriate unit and the like and concerning the Respondent's opera-
tions on the following Monday, July 12. After talking to Buhler, Myrick
addressed the New'Orleans employees.
There is little difference in their recollection of his remarks between witnesses
for the General Counsel, who heard them, and Myrick himself, who made them.
It is found from his own testimony, that Myrick spoke substantially as follows :
Well, I see you boys want a union . . . If you want a union, that is
your privilege; but if you go union, we'll have but two regular men and
we'll have an extra man on the third truck . . s Then at the same time,
remember that I got these men in Gulfport that are making less money than
you boys are making here now and they are eligible if they want to, to
8 The Respondent's failure to hire Buhler was alleged neither by the charge nor the
complaint to have been discriminatory. Upon the entire record in the case, the undersigned
is convinced and finds that, although adverted to at the hearing to a degree, the matter
was not litigated with such thoroughness as would warrant a finding of a violation by the
Respondent of Section 8 (a) (3) of the Act based thereupon. The undersigned will there-
fore confine himself to a finding of a violation by the Respondent of Section 8 (a) (1) in
.connection with the Buhler incident.
A reduction in force.
853396-50-vol. 8443
14
622 DECISIONS -OF NATIONAL LABOR .RELATIONS BOARD
come to New Orleans and take these jobs that pay more money than they
get in Gulfport . .. 10 If Lcan't make it pay off over here [New Orleans],
I will have to pull my trucks back to Gulfport.
Ile further promised them a raise "... I told them after we got over
in this new building that I would raise their salaries and see that they were
paid more money, which we did." " Myrick spontaneously added to his account
of the affair, "They all seemed to be mighty well satisfied and I never heard no
more out of them."
Former employee Lyons testified that, although Myrick did not specifically
warn the employees that they might lose their jobs, his reaction was neverthe-
less that Myrick's threat to import Gulfport employees to New Orleans was
tantamount to warning those listening to him that their jobs would become
untenable should they combine to contrive to introduce the Union into the
Respondent's operation there. The undersigned agrees with Lyons' conception
of the meaning of Myrick's remarks and finds Myrick so to have intended his
auditors to understand him.
It is found that, by the inquiry of Lewis of employee McCoury as to the
latter's union membership; by Myrick's questioning of former employee Lyons
respecting the Union's 'organizing campaign and by his urging of Lyons and
former employee Palmer to forget the Union until the Respondent should have
occupied its new facilities at which time their pay would be bettered and their
working conditions ameliorated ; by Myrick's refusal to hire Buhler because
of the latter's union membership; and by Myrick's threats of July 9, to the
New Orleans employees to reduce the local force, substitute Gulfport employees
in their stead, and to remove his trucks from New Orleans, and by holding out
promises of increased pay and bettered working conditions provided they refrain
from joining or assisting the Union at that'time'12 the Respondent has interfered
with, restrained, and coerced its employees in the exercise of rights guaranteed
them in Section 7 of the Act.13
C. The discriminatory discharge of Quinn
Ray Williams McGee Quinn was hired early in June 1948,14 by Manager Lewis
at New Orleans as a driver of trailer trucks. He functioned as such until
June 18.
On that day he suffered an accident when driving in New Orleans while
deprived of his normal helper by the Respondent's shortage of employees., Quinn
stopped for a red light at Canal and Rampart Streets ; police had blocked traffic
at Canal and Basin Streets to allow passage of fire equipment, there being a con-
flagration in the neighborhood. An officer directed him to turn aside, and despite
,Quinn's protests that he 'could not safely do so, insisted that his order be
obeyed. In consequence of Quinn's following it, a parked car was damaged by
Quinn's trailer. The police thereupon, and without permitting him to telephone
10 Myrick had been in business for from three to five years there and in consequence, the
Gulfport employees had seniority greater than those in New Orleans.
11 Testimony was adduced by the General Counsel that Myrick, at this meeting, asked
what employee had brought union cards onto the premises. He denied having done so and
from all of the evidence, the undersigned credits his denial.
12 Although Myrick did not specifically make this statement, the purport of his statements,
in the context of events, is clear, and the undersigned finds that those hearing him s&
understood it.
13 See Matter of Waynline, Inc., 81 N. L. R B. 511, and cases therein cited.
14 He went on the Respondent's pay roll on June 8.
GULFPORT TRANSPORT COMPANY 623
to his employer, hurried Quinn off to a police station. There, after some difficulty,
he was permitted to telephone and was bailed out by the Respondent after about
an hour's delay. On or about June 21, Quinn stood trial for having been
unable to follow both of the conflicting orders given him by two policemen in the
tangle resulting from' the fire, 'and, supported by the owner of, the damaged
vehicle who testified that the police, not Quinn, were in error, Quinn was fined
$5 by the judge, not for violation of traffic regulations, but for "talking smart,"
an imputation strenuously denied by Quinn."
Quinn was thereafter, except for a day spent in orienting his successor thereon,
deprived of driving his trailer and reduced to driving a pickup truck.
This truck, according to Quinn, had a faulty right rear door. According to
Myrick, the truck, consisting of a new chassis and an old but "reworked" body,
arrived in New Orleans on June 3, in good condition. There is no evidence, aside
from the testimony of Quinn, respecting its condition on June 21. On July '1,
the door became loose and was repaired at a cost to the Respondent of $5. On
July 8, it again became unsatisfactory, and was again repaired at Hosey's order,
this time at a cost to the Respondent of $3.50. Much testimony was adduced as
to the cause of these small repairs : Quinn disclaimed responsibility therefor ;
Hosey and Myrick, the latter on the basis of reports and prior purported good
condition of the truck, attributing them to Quinn's carelessness. For the entire
evidence, including the fact that, as of the date of the hearing, the Respondent's
records while revealing, reports to his insurance company of but four reported
accidents, one of them Quinn's of June 18, did not reflect the minor matters of
the door, the undersigned concludes and finds that the matter of the repair of
the door of Quinn's pickup truck was of such minor import as to have had no
influence upon its driver's discharge.
About 2 weeks before he was discharged on July 10, Quinn, who had been a
union member since 1941, and who testified, and the undersigned finds, wore his
union button on his cap about the Respondent's premises, began the Union's
organizing campaign by deputizing employees McCoury and Billy Westbrook
to obtain application cards and "the sheet" from the office of the Union Local
where Quinn was well acquainted. Under Quinn's leadership they and he ob-
tained signatures of the employees resulting in the filing of the Union's petition
on or before July 7. ' The evidence reveals and the undersigned finds that, Quinn
was the undisputed leader of the movement.
Employee Lyons testified that during the period of the Union's drive he over-,
heard Myrick tell Hosey in the New Orleans office of the Respondent that he
believed that Quinn had been responsible for bringing the union "cards over."
Both Myrick and Hosey heatedly denied the alleged conversation. From all of
the surrounding circumstances, including the physical aspects of the scene,36
and the weight of the evidence, the undersigned, with some hesitation, credits
their denials.
On July 2, Quinn was injured in the course of his employment when a large
armoire which he and another employee were lifting fell on his right foot. He
did not work the following day, Saturday, but reported to Hosey to the effect
that he was sick or injured. The following day was Sunday and Monday was
ze These findings are based upon the undenied and credible testimony of Quinn buttressed
by the, Respondent's report of the accident to his insurance Company. Quinn is a young. .and articulate Negro.'
34 Lyons was allegedly carrying bundles, apparently along the dock, and just happened to
be passing the open window of the office so as to catch the alleged snatch of the conversation
between Myrick and Hosey.
'624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,celebrated for the Fourth of, July. He reported for work on July 6, Tuesday,
and drove his truck that day. He informed Hosey of his painful foot but received
no assistance from him. On July 7, Quinn did not report, but on July 8 again
worked the day. On July 9, after Charity Hospital, to which-he had repaired, had
'reported his plight, Quinn was finally able to obtain the somewhat casual atten-
tion of a doctor who prescribed an analgesic to ease his pain. On Saturday,
July 10, Quinn reported to the Respondent's office for his check. Hosey there
informed him that he was discharged, stating in response to his question, that
Quinn had been causing the Respondent nothing but trouble. According to
Quinn, Hosey also mentioned union cards, suggested that he refer to the Union
for help, and stated that the Respondent would do nothing further to aid Quinn
in the matter of his injured foot 1T Hosey first denied having mentioned the
Union to Quinn, but on cross-examination by the General Counsel, admitted hav-
ing mentioned it and testified that Quinn had asked him if he were being dis-
charged on account of his union activities, to which Hosey answered that Quinn's
,union membership was immaterial. He denied knowing of Quinn's activities on
behalf of the Union and stated that he had not noticed his union button. Hosey
made no mention of accidents at the time of Quinn's discharge.
There is much testimony in the record regarding the Respondent's rules as
to the number of "accidents" one of his employees may suffer short of discharge,
Quinn's performance as the driver of trailers since his discharge, his having
filed a damage suit against the Respondent subsequent to his discharge, and the
like. It is found that Quinn was unable to work in consequence of his foot
complaint until September 25, 1948. He has since that date been working as a
driver of trailers.
To detail it all at length would, in the opinion of the undersigned, serve no
purpose but to prolong this already too expansive report. The Respondent,
by his counsel, stated that he discharged Quinn because of "his incompetence
in driving and the inability to depend upon him for work . . . we just considered
him an unreliable employee and the best way to get rid of him was to let him
go . . . The last week we couldn't get him to report for work and it was a
combination of facts that we considered together with his reckless driving."
As has been found above, Hosey testified that Quinn had simply caused the
Respondent nothing but trouble. Myrick, the man who is hereby found to have
ordered his discharge, testified that the Respondent dispensed with Quinn because
.. On June 18 he had this accident and he damaged the doors on the van
a second time, then he didn't show up to work, undependable, dissatisfactory,
so we didn't need him."
The proven hostility of the Respondent to the Union, the fact that in a very
Small operation such as the Respondent's at New Orleans, the activity on behalf
of the Union by Quinn must be presumed to have come to the attention of the
Respondent, especially since he wore his union button on his cap, ".the admission
by Hosey that employees who were ill were not normally discharged for having
fallen into that state, as well as his having made no reference to Quinn's
11 Both Hosey and Quinn testified that there was mention of unknown parties who had
telephoned the Respondent respecting his trucks. The undersigned, upon the state of the
record can make no definite finding clarifying the matter. He assumes that it had added
to Quinn's allegedly troublesome qualities in the eyes of the Respondent.
-See N. L. R. B. V. Abbott Worsted Mills, Inc, 127 F. (2d) •438, 440, (C. A. 1) and
Matter of , Que8t,Shon Mark Brassiere Co., 80 , N. L. R., B . 1149. ,
GULFPORT TRANSPORT COMPANY 625
alleged faulty or reckless driving at the time of his discharge, and all of the
circumstances revealed by the entire record, bring the undersigned to the con
elusion, and he finds, that the Respondent did not discharge Quinn because of
the reasons variously advanced by Hosey,.Myrick, and his counsel, but because
of his implacable animus against the Union of which Quinn- was the unquestioned
protagonist. By so doing, the Respondent has interfered with, restrained, and
coerced his employees in the exercise of rights guaranteed in Section 7 of the Act.
J
IV. THE EFFECT' OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III above, occurring
in connection with the operations of the Respondent set forth in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce'
among the several States and tend to lead to labor disputes burdening and'
obstructing commerce and the free flow of commerce.
V. THE REMEDY 'I
Having found that the Respondent has engaged in and is engaging in certain
unfair labor practices, it will be recommended that he cease and desist there-
from and take certain affirmative action ,designed to effectuate the policies of
the Act.
It has been found that the Respondent discriminatorily discharged Ray Wil-'
liams McGee Quinn. It will therefore be recommended that the Respondent
offer to Quinn immediate and full reinstatement to his former or substantially
equivalent position," without prejudice to his seniority or other rights and
privileges, and that he made said Quinn whole for any loss of pay he may have
suffered by reason of the Respondent's discrimination against him by payment
to Quinn of a sum of money equal to that which he would normally have earned
as wages from the date of his discharge to the date when, pursuant to the recom-
mendations herein, the Respondent shall offer him reinstatement, less his net
earnings during said period RO
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAw
1. Local 270, General Truck Drivers, Chauffeurs, Warehousemen & Helpers,
AFL, ,is a labor organization,, within the. meaning of Section 2 (5)' of the Act.
2. By discriminating in regard to the hire and, tenure of employment of Ray,
Williams McGee Quinn, thereby discouraging membership in Local 270, General
Truck Drivers, Chauffeurs, Warehousemen & Helpers, AFL, the Respondent has,
engaged in and is engaging in unfair labor practices , within the meaning of
Section 8 (a) (3),of the Act.
3. By interfering with , restraining , and coercing his employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
29 See Matter of The Chase National Bank of the City of New York , an Juan, Puerto
Rico Branch, 65 N. L. R. B. 827.
20 See Matter of Crossett Lumber Company, 8 N. L. R. B : 440, 497-498 ; Republic Steel
Corporation V. N. L. R . B., 311 U . S. 7.
626 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
is engaging in unfair labor practices, within the meaning of Section 8 (a) (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices, within the
meaning of the Sections (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the Respondent, George V. Kussmann, Jr. d/b/a
Gulfport Transport Company, his officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a), Discouraging membership in Local 270, General Truck Drivers, Chauffeurs,
Warehousemen & Helpers, AFL, or in any other labor organization of his em-
ployees, by discriminatorily discharging or refusing to reinstate any of his
employees, or by discriminating in any other manner in regard to their hire
and tenure of employment, or any term or condition of employment ; and
(b) In any other manner interfering with, restraining, or coercing his em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist Local 270, General Truck Drivers, Chauffeurs, Warehouse-
men & Helpers, AFL, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid or protection,
as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will effec-
tuate the purposes of the Act :
(a) Offer to Ray Williams McGee Quinn immediate and full reinstatement to
his former or substantially equivalent position without prejudice to his seniority
or other'rights and privileges ;
(b) Make whole said Ray Williams McGee Quinn for any loss of pay he may
have suffered by reason of the Respondent's discrimination against him, in the
manner set forth in the Section entitled "The remedy" above ;
(c) Post at his places of business in New Orleans, Louisiana, and Gulfport,
Mississippi, copies of the notice attached hereto and marked "Appendix A."
Copies of said notice, to be furnished by the Regional Director for the Fifteenth
Region, shall, after being duly.signed,by the-Respondent or his representative, be
posted by the Respondent immediately upon receipt thereof and maintained by
him for a period of sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted in each
of his said two places of business., Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered by any
other material ; land, , i ' - - 't '' ` , 11 '
(d) Notify the Regional Director for the Fifteenth Region in writing within
Twenty (20) days from the receipt of this Intermediate Report •what steps the
Respondent *has taken to comply herewith.
It is further recommended that,'unless on or before' Twenty- (20)' days from
the receipt of this Intermediate Report the Respondent notifies said Regional
Director in1writing that he'*ill comply'with the foregoing recommendations, the
National Labor,Relations.Board issue an order requiring the'Responden't to take
the action aforesaid.
GULFPORT TRANSPORT COMPANY 627
',
As provided in Section 20346 of the Rules-and Regulations of the National
Labor Relations Board-Series 5,,as amended August 18, 1948, any party may,
within:.twenty,(20).days from the date of service of the order transferring the
case to- the Board, pursuant to Section 203.45 of said Rules and Regulations, file
with the Board, Rochambeau Building, Washington 25, D. C., an original and
six copies of a statement in"writing setting forth such exceptions to the Inter-
mediate Report or to any other part of the record or proceeding (including rulings
upon-all motions or objections) as he relies upon, together with the original and
six copies of a brief in support thereof ; and any party may, within the same
period, file an original' and six copies of a brief in support of the Intermediate
Report and Recommended Order. Immediately upon the filing of such statement
of exceptions and/or briefs, the party filing the same shall serve a copy,thereof
upon each of the other parties. Statements of exceptions of briefs shall designate
by precise citation the portions of the record relied upon and shall be be legibly
printed or mimeographed, and if mimeographed shall be double spaced. Proof
of service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.85. As further provided in said Section 203.46
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 28th day of February 1949.
JOSEF L. HEKTOON,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner, interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor organ-
izations, to join or assist LOCAL 270, GENERAL TRUCK DRIVERS, CHAUFFEURS,
WAREHOUSEMEN & HELPERS, AFL, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other
mutual aid or protection.
WE WILL OFFER to the employee named below immediate and full rein-
statement to his former or substantially equivalent position without
prejudice to any seniority or other rights and privileges previously enjoyed,
and make him whole for any loss of pay suffered as a result of the discrimina-
tion.
Ray Williams McGee Quinn
628 DECISIONS• OF, NATIONAL- LABOR-, RELATIONS BOARD
All our employees are free to become or remain members of the above-named
union or -any other labor organization . • We will not discriminate in regard' to
hire -or tenure of employment or any term or condition of employment against
any.,employee because of membership in or iactivity on behalf of any such labor
organization. . II
GEORGE V. $USSMANN , JR., D/B/A
GULFPORT TRANSPORT COMPANY,
Employer.
Dated-------------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered , defaced, or covered by any other material.
i,,