Herrin Transportation Co.

National Labor Relations Board - Board Decisions

Feb 17, 1965

151 N.L.R.B. 108 (N.L.R.B. 1965)

108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional Office, Squibb
Building, Fifth floor, 745 Fifth Avenue, New York, New York, Telephone No. 751-
5500, if they have any question concerning this notice or compliance with its
provisions.
Herrin Transportation Company and Hugh M. Miller, attorney
for and on behalf of the following individuals : Joe Tinkle,
Willie Johnson , Robert Hoke , Willie C. Rose, James Volter,
George Fontenette , James Washington , Thomas Gary, C. R.
Samuels, R. J. Washington . Case No. P23-CA-1730. Febru-
ary 17, 1965
DECISION AND ORDER
On May 14, 1964, Trial Examiner C. W. Whittemore issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached
Decision. 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 National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
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 this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner,' except as modified
herein.
1. In agreement with the Trial Examiner, we find that the
Respondent unlawfully assisted and contributed support to the
Herrin Employees Shop Committee. In this connection, we rely
particularly upon the Respondent's continued recognition of this
'These findings and conclusions are based , in part , upon credibility determinations of
the Trial Examiner, to which the Respondent has excepted , alleging that the Trial
Examiner was biased and prejudiced . After a careful review of the record, we conclude
that the Trial Examiner's credibility findings are not contrary to the clear preponder-
ance of all the relevant evidence. Accordingly, we find no basis for disturbing the Trial
Examiner ' s credibility findings in this case , and reject the charge of bias and prejudice.
Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3).
151 NLRB No. 10.
HERRIN TRANSPORTATION COMPANY 109
Committee as the representative of the shop employees, upon the
positive acceptance by Respondent President Young, of the unlaw-
ful purposes for which the Committee was used (to keep the
Teamsters out) ,2 and upon the tacit permission given by the Respond-
ent to the Committee to meet on company time without any reduc-
tion in pay .3 Also, Respondent discharged the complainants,
including two members of the Committee, because their activities
were at odds with the purposes for which the Committee was estab-
lished 4 However, we do not agree with the Trial Examiner's
further finding that the Respondent's conduct amounted to unlaw-
ful domination.5 We shall, therefore, not adopt the Trial Examiner's
recommendation that the Committee be disestablished.
2. We also agree with the Trial Examiner that the complainants
were discharged because of their union activities in violation of
Section 8(a) (3) and (1) of the Act. Eight of them had attended
an organizational meeting on December 11 at employee Fontenette's
home where they signed authorization cards, and the other two
signed by the morning of December 12. On the morning of the
latter date, the Committee presented a grievance to the Respondent
and threatened to seek representation from an outside union. On the
following day, December 13, the Respondent granted a wage
increase and shortened the working hours of its employees. Later
that same day, the Respondent abruptly terminated the complainants
notwithstanding Young's earlier promise to the Committee that an
employee would be given two warnings before his discharge.6 The
Respondent sought to prove that the discharges were made on the
basis of an independent survey by a representative of the White
Motor Company and that the authorization cards were not in fact
signed until after the discharge. However, a careful examination
of the offers of proof rejected by the Trial Examiner convinces us
that the Respondent could not have sustained either of these con-
2 Ashley, who was also general manager under the previous owner , when the Com-
mittee was set up and re-formed , knew of its antiunion origin and reaffirmed its function
after Young took over.
3 See, e g., Wean Manufacturing Company, 147 NLRB 112.
4 Cf. Campco Plastics Company, a Division of Chicago Molded Products Corporation, 142
NLRB 1272, 1273.
5 Detroit Plastic Products Company, 126 NLRB 1182 , 1184 . The record shows that
the Committee was originally set up during the ownership of R. T. Herrin and that the
re-formation of the Committee occurred sometime in January or February 1963. Since
both events occurred outside the Section 10 ( b) period , we cannot adopt the apparent
reliance of the Trial Examiner on these facts in finding domination. Local Lodge
No. 1424 , International Association of Machinists, AFL-CIO (Bryan Manufacturing Co.)
v. N.L.R.B., 362 U.S. 411.
G While the Respondent offered testimony to show that each discriminatee had been
reprimanded in the past, none of this testimony disclosed the kind of employee conduct
or reprimands which would ordinarily provoke the mass discharges herein. Moreover,
the reprimands occurred during the months of October and November.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tentions. For these reasons, we find that the Respondent was
motivated by antiunion considerations in discharging the employees
in violation of Section 8(a) (3) and (1) of the Act.7
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act,
as amended , the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner and orders that the Respondent,
Herrin Transportation Company, its officers , agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's
Recommended Order, with the following modifications:
Paragraph 1(b) is amended by adding the words "unless and
until said Committee is certified by the Board as such representative."
Paragraph 1(c) is modified to read as follows:
"(c) Assisting or contributing support to the Herrin Employees
Shop Committee, or any other labor organization of their employees,
or interfering with the formation of such Committee or other labor
organization."
Paragraph 2 (b) is modified to read as follows :
"(b) Withdraw and withhold all recognition from the Herrin
Employees Shop Committee as the exclusive representative of any
of Respondent 's employees for the purpose of dealing with the
Respondent concerning grievances , wages, hours , or other conditions
of work, unless and until said Committee is duly certified as such
representative by the Board."
The second substantive paragraph of the notice is amended by
adding the words "unless and until said Committee is certified by the
Board as such representative."
7 See, e g., Arkansas -Louisiana Gas Company, 142 NLRB 1083, 1085-1086, enfd. 333 F.
2d 790 (C A. 8).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on December 19, 1963, and January 16 and 29, 1964, by
Attorney Hugh M. Miller, the General Counsel of the National Labor Relations
Board on February 3, 1964, issued his complaint and notice of hearing in the above-
entitled case The Respondent thereafter filed its answer dated February 11, 1964.
The complaint alleges and the answer denies that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1), (2 ), and (3 ) of the National
Labor Relations Act, as amended . Pursuant to notice, a hearing was held in Hous-
ton, Texas , on March 16 , 17, and 18, 1964, before Trial Examiner C. W. Whittemore.
At the hearing all parties were represented by counsel and were afforded full
opportunity to present evidence pertinent to the issues , to argue orally , and to file
briefs. Oral argument was waived . Briefs have been received from General Coun-
sel and the Respondent.
Disposition of the Respondent's motion to dismiss the complaint , upon which rul-
ing was reserved at the conclusion of the hearing, is made by the following findings,
conclusions , and recommendations.
HERRIN TRANSPORTATION COMPANY 111
Upon the record thus made, and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Texas corporation , with principal office and terminal in
Houston, Texas. It is engaged in the business of transporting goods and commodities
by motortruck to its other terminals in Kansas , Missouri , and various other States
of the United States as licensed by the Interstate Commerce Commission . Its Hous-
ton terminal is the only facility involved in these proceedings.
During the 12 months preceding issuance of the complaint the Respondent derived
gross income of more than $ 50,000 from its trucking operation , performed by it in
operating between and among various States of the United States.
The complaint alleges, the answer admits, and it is here found that the Respondent
is engaged in commerce within the meaning of the Act
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the answer admits , and it is here found that International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America is a
labor organization within the meaning of Section 2(5) of the Act . In its answer the
Respondent states that it "does not admit " allegations of the complaint to the effect
that a similar legal conclusion is to be applied to "Herrin Employees Shop Commit-
tee." The question will be resolved in a later section of this Decision.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
The chief issue raised by the complaint arises from the undisputed fact that the
services of the 10 individuals named in the caption of the case, above , were suddenly
and without prior warning terminated on the same date, December 13, 1963. Col-
lateral with this issue is the question as to whether the Respondent has unlawfully
assisted , dominated , and interfered with the administration of a so-called Shop Com-
mittee, and as to whether by other conduct the Respondent has interfered with,
restrained , and coerced employees in the exericse of rights guaranteed by Section 7
of the Act.
B. The Shop Committee
1. Relevant facts
Although at no time "formalized ," so far as the record shows, to the extent of
having members , officers, and bylaws, in the fashion of the usual labor organization,
it is plain from undisputed testimony that since 1948 the Respondent 's "shop"
employees have been represented , in dealing with management concerning grievances
and working conditions , by a committee consisting of three employees . Uncontra-
dicted testimony shows that one of this Committee 's chief functions has been to
keep "outside " unions, especially the Teamsters , from gaining majority representa-
tive status among this group of shop employees , in more recent times numbering
about38.
It appears that a committee of this nature was originally set up during the owner-
ship of one R. T. Herrin . (All of the corporation stock was purchased in July 1963
by John S. Young and two minority partners. Young became the president and
chief executive officer. Since 1954 W. Howard Ashley has been and continues to be
the general manager.)
According to Ashley's testimony he has been aware of the existence of the Commit-
tee only since 1962 when , at Herrin 's suggestion and following some sort of an elec-
tion the shop employees voted not to be represented by the Teamsters , he "set up"
the Committee.
As to the 1963 re-formation of the Committee , it is uncontradicted that Ashley
and Herrin , Junior, came into the shop , declared the committee places open , called
for nominations , conducted an election among the shop employees, counted the bal-
lots, and posted a bulletin announcing that empoyees Fontenette, Gosnell, and
Volter were the new members.
According to Ashley's own testimony , and at least up to the time Fontenette and
Volter were discharged in December 1963, he dealt with this Committee as repre-
senting the shop employees concerning such problems as shift changes , hours of
work, promotions , and working conditions in general.
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Conclusions
The foregoing facts fully support General Counsel's contentions that: (1) The
Committee is a labor organization within the meaning of the Act; and (2) since
July 29, 1963 (the date 6 months before filing of the initial charge), the Respondent
has assisted and contributed support to this Committee. It is so concluded and
found.'
C. The dismissals of December 13
1. Relevant facts
Since the employment terminations of all 10 employees here involved occurred
on, or as of, December 13, they will be considered together. The question posed is
whether, as General Counsel alleges, these terminations were for the unlawful pur-
pose of discouraging membership in the Teamsters, or, as the Respondent contends,
because the work of all 10 failed to meet company "policy" and standards.
The credible and undisputed testimony of employee Volter is to the effect that
when new ownership took over in July 1963, General Manager Ashley told employees
that the shop "would be run just like it was before, he wanted everything to stay the
same, wanted to hold up our committee, keep the Union (Teamsters) out, and we had
our job there ...."
And the candid testimony of both President Young and Director of Equipment
Thomas makes it plain that at least until shortly before the sudden discharge of the
10 employees management had considered all of them as definitely "opposed" to the
Teamsters.
Late in November, however, it appears that Volter and others in the shop became
dissatisfied with the new ownership's observance of previously recognized seniority
policies, and began to discuss a move to seek representation by the Teamsters, which
already represented certain other employees of the Company. According to the
credible testimony of R. J. Washington, who had been a committeeman until early in
1963, "we were going to have to get a union because we was losing ground, we
wasn't going to be able to go on with the present management as we had in the past "
The incident precipitating the move toward self-organization seems to have been
management's failure to follow seniority in assignment to Sunday work. Volter was
told by a number of his fellow employees to "see Ashley," and if matters were not
remedied, they would "go union." On November 21 or 22 Volter informed Ashley
that the boys "were changing fast" and that he "needed to come out there and talk to
them."
The next day the Committee met with Thomas. Volter protested the changing of
shifts out of seniority, and told this management official that if he did not want to
"recognize the committee" he had "thirty men out there" with him. Thomas and
Ashley then went out to talk to the shop employees. Thomas assured them, in
effect, that seniority would thereafter be followed, and that proposed job promotions
would be posted. He also told them, according to R. J. Washington's credible testi-
mony, that "any employee would have two warnings before being discharged"-first
he would "warn the committee and then he would warn the individual." And accord-
ing to the credible testimony of both Washington and Fontenette, on the same occa-
sion Thomas told them that the "company just didn't want no union in the shop." 2
Counsel for the Respondent established through cross-examination of Washington
and Volter that the first mentioned, late in November or early in December, asked
Ashley to arrange a meeting with Young, and that within a day or two he and
Volter were called into the "North Loop" office. It is their credible testimony that
Washington, the seeker of the meeting and spokesman for the two, told Young that
they had kept the Union out as Herrin had wanted them to, and asked the new
president, in effect, what he wanted. Young told them that he did not want the
Union, but wanted the arrangement to continue as before, working through the Com-
mittee. As the employees left the office, Ashley remarked to Young that they were
the "two boys" who had kept the Union out of the shop.
'See N.L .R.B. v. Cabot Carbon Company and Cabot Shops, Inc., 360 U.S. 203. The
complaint's allegations of domination and interference with the administration of the
Committee will be discussed in a later section.
a Thomas' denial, as a witness for the Respondent, that "any mention of any union"
was made at this meeting is not credited. Earlier during the hearing, when called as
an adverse witness by General Counsel, Thomas said that he did not "remember specifi-
cally" If the Union was "discussed" at any meetings "between November 22 and Decem-
ber 13."
HERRIN TRANSPORTATION COMPANY 113
Thus it is clear that after discussing their need for outside representation the two
leaders made one more approach to management, in the apparent effort to revive the
amicable arrangement and relationship they had had with Herrin.
But according to Ashley's own testimony on December 9 or 10 management again
took action without consulting the "Committee" of its own creation: this time con-
cerning a promotion. He said that "Mr. Thomas, our director of maintenance, had
just put up a bulletin designating a Mr. Hill as a supervisor over the trailer shop,"
and that the employees were objecting to this.
On December 11 employee Ray Samuels, who apparently was most personally
affected by the promotion of Hill, obtained 12 or 15 Teamsters cards from James
Turner, steward for the Teamsters Local representing dock employees. It is rea-
sonably inferred from Volter's testimony that the employees had decided to obtain
whatever protection such representation might afford before going to the "main
office" again with the latest protest.3
On the night of December 11, Samuels brought the cards to the home of Fonte-
nette and all of the individuals named in the caption, except Joe Tinkle and R. J.
Washington, signed cards at that home Washington, unable to be present, went to
Samuels' house early the next morning and signed After signing his own card at
Fontenette's home, that night, employee Hoke went to the shop and obtained Tinkle's
signature as he left work.
Early the next morning, December 12, Volter went to A. R. Talley, the terminal
manager, and told him that he had better call a meeting or by Monday "the union
would have done took over." Talley promptly arranged for an immediate meeting
with Young 4
About an hour later the Committee composed of Volter, Gosnell, and Fonte-
nette, augmented by R. J. Washington, met with President Young and Ashley at the
general office.
The substance of the credible testimony of Volter and Washington is to the effect
that the seniority question was discussed and that Volter volunteered the fact that
he was doing all he could "to eliminate a union if we could get seniority rulings
with a good foundation." (The quotations are from Washington's testimony.)
Volter added that he was afraid that because of his age the Union might not accept
his membership. Young replied, according to Washington, that he didn't want a
union in the shop, and that they had a job as long as "we got a company." 5
According to Young's own testimony he told the Committee that he would give
their protest "further consideration and discuss it with them later "
Also according to the president, instead of giving "further consideration" to his
company-supported Committee, "immediately after these gentlemen left" he told
Ashley it was "very obvious that we had unwilling workers out there ...." He
called, he testified, a luncheon meeting of plant officials for that noon.
It is Young's further claim that he told these officials at this luncheon meeting
to go over "the entire list" of shop employees and then meet with him to "have a full
discussion on their capabilities, their efficiencies, their willingness to work, et cetera "
Finally, he testified that after such "discussion" it was "my decision . to termi-
nate" the employment of the 10 men, and "give them two weeks pay." He admitted
that he made this decision to fire these employees although he had no knowledge of
them "by name and face."
It is Young's candid and somewhat curious admission that those he "selected for
termination were men that had previously been pro-company and anti-union " He
ordered one of the officials to have checks ready for the 10 the next afternoon
The next morning, December 13, employee Hoke went to Thomas' office concern-
ing certain work he was then performing. Thomas asked him if the shop was going
union. Hoke said it "looked" that way and asked if Thomas wanted it to. Thomas
replied that neither he nor the Company "wanted" it, and added, "We will do any-
thing in the world in our power that we can to keep it from going union." Thomas
then asked Hoke if he could "hold it off" and the employee said he thought he could
3 Volter testified- "I suggested to them that we didn't go to the main office then until
we got through doing what we were going to do and got signed up, got a representative "
4 This finding rests upon Volter's credible testimony, which is corroborated by Fontenette
Talley admitted that he was asked to have the meeting but denied that anything was
said about the Union His denial is not credited
5 As a witness Young admitted that at this meeting the Committee complained about
the promotion out of seniority and recommended Samuels for the job, and that Volter
said he had been "against" the Union in the past
783-133-66-vol 151-9
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"a day or two." The manager said he would appreciate it if he could do so, and
then asked Hoke, who is white, "Is it all colored or all white?" Hoke replied that
it was "mixed, colored and white." 6
At noon on December 13, and despite management's claim that the day before it
had decided to discharge nearly a third of its shop employees, Thomas called all
employees together and announced there would be an immediate reduction in work-
ing hours and an increase in pay.
Later that same day, according to Thomas, he told all 10 employees-except Hoke,
who had left early in the afternoon-that they were "terminated" because their
"work" was not "up to standards," and that Talley then gave them their final checks.
Employees, however, testified that Thomas simply discharged them without giving
any reason. The employees' testimony is credited.
Hoke was fired upon his return to the plant the following Tuesday as of Decem-
ber 13. None of the 10 has been reinstated.
2. Conclusions
It appears needless to me to review here the extensive and often inconsistent claims
by various officials of their reports to Young in the afternoon of December 12 as to
complaints they knew about concerning most of the 10 individuals discharged. Even
if it be accepted that such a meeting actually was held, I cannot believe that Young,
based his selection upon any such claimed reports of work records, or "et cetera," as
Young stoutly contended. It has been said that some laws seem somewhat less than
effective in the great State of Texas, but I am not aware that the law of probabilities
has there been nullified. The chance that the only 10 men, so far as the record shows,
who signed a union card the night of December 11 or early the morning of Decem-
ber 12, out of a total of 38, should also be the 10 to fail to come up to "standards"
to a degree sufficient to warrant immediate and summary discharge is one in several
million. And Young's frank admission of knowledge that these same 10 men he
had selected had been "pro-company" merely compounds the improbability of his
asserted reason for the mass discharge.
In short, I can believe no part of the Respondent's contentions as to why these
employees were so hastily dismissed.?
The facts lead inescapably, in my opinion, to the conclusion, here made that
Young resented not only the Committee's protest about the failure to give Samuels
an opportunity to bid on the promotion, but decided to act quickly before majority
representation in the Union brought undesired pressure upon him. It is obvious that
so strong was this resentment that it caused him to violate his own quoted word to
the Committee-to give their suggestions consideration and discuss the matter fur-
ther with it. He immediately fired the two members of the Committee who had
signed union cards.
Such unlawful discrimination interfered with, restrained, and coerced employees
in the exercise of rights guaranteed by Section 7 of the Act.
Further, I conclude and find that the foregoing findings, relating to the Respond-
ent's dealings with its Committee, fully support the allegation that it both domi-
nated and interfered with the administration of the Committee during the 6-month
period before filing of the charge. The one member of the Committee who was not
fired-Gosnell-had not signed a union card, so far as the record shows. Having
"set up" the Committee, as management admitted, to discharge two of its members
because they brought a grievance to him and threatened to bring union pressure to
bear is, in my opinion, the severest sort of domination.
O The findings as to this interview are based on, and the quotations are from, the
credible testimony of Hoke, corroborated by Fontenette, who, in a nearby doorway, was
waiting to speak to Thomas. Hoke was an unusually self-controlled and impressive
witness, and was apparently held in high esteem by Thomas, since it is undisputed that
(1) he was often left in charge of the shop, and (2) a few weeks earlier Thomas had
agreed to have him take charge of the Company's shop in New Orleans when an opening
occurred. Thomas' denial that he had any conversation with Hoke that day is not
credited. He claimed, however, that he had a somewhat similar interview with Hoke
sometime in October, although he could not place the date or time.
7 As a witness Thomas claimed that the day after his discharge Tinkle was told he
was "retired." Whatever the term implied, the result remains the same so far as Tinkle
is concerned. The Respondent does not claim that he is receiving any retirement benefits.
HERRIN TRANSPORTATION COMPANY 115
Finally, I conclude and find that management's granting of wage increases and
other benefits to employees on December 13-the same day it dismissed union
employees-was for the unlawful purpose of inducing the remaining employees to
refrain from joining the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, I will
recommend that it cease and desist therefrom and take certain affirmative action to
effectuate the policies of the Act.
It will be recommended that the Respondent offer immediate and full reinstate-
ment to the 10 individuals named in the title of this case to their former or substan-
tially equivalent positions, without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of earnings they may have suffered by
reason of the unlawful discrimination, by payment to each of them of a sum of
money equal to that which he would normally have earned as wages, absent the
discrimination, from the date of discharge to the date of offer of full reinstatement,
in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB
289, and with interest as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716.
It will also be recommended that the Respondent disestablish and cease to recognize
Herrin Employees Shop Committee as the representative of any of its employees in
dealing with it regarding wages, hours of employment, or any other term or condi-
tion of employment.
In view of the serious and extended nature of the Respondent's unfair labor prac-
tices it will be recommended that it cease and desist from in any manner infringing
upon the rights of employees guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America and Herrin Employees Shop Committee are labor organizations within
the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of employees,
as described herein, to discourage membership in a labor organization, the Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
3. By dominating, assisting, and interfering with the administration of the above-
named Shop Committee, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (2) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
5 The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon the
entire record in the case, I recommend that the Respondent, Herrin Transportation
Company, its officers, agents, successors, and assigns, shall: 8
1 Cease and desist from:
(a) Discouraging membership in and activity on behalf of International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any
8In the event the Board adopts this Recommended Order the above paragraph shall be
amended to read'
Upon the entire record in this case, and pursuant to Section 10(c) of the Na-
tional Labor Relations Act, as amended, the National Labor Relations Board hereby
orders that the Respondent, its officers, agents, successors, and assigns, shall:
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other labor organization , by discharging , laying off, or refusing to reinstate any of
its employees because of their union membership or activities , or in any other manner
discriminating in regard to hire or tenure of employment , or any term or condition
of employment.
(b) Recognizing or dealing with Herrin Employees Shop Committee as the repre-
sentative of any of its employees for purposes of collective bargaining regarding
wages, hours of employment , or any term or condition of employment.
(c) Dominating , assisting , or interfering with the formation or administration of
any labor organization.
( d) Unlawfully interrogating employees as to their union activities.
(e) In any other manner interfering with , restraining , or coercing employees in
the exercise of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Offer employees Joe Tinkle , George Fontenette , Willie Johnson , James Wash-
ington , Robert Hoke, Thomas Gary, Willie C. Rose, C. R. Samuels , R. J. Washing-
ton, and James Volter immediate and full reinstatement to their former or substan-
tially equivalent positions , without prejudice to their seniority or other rights and
privileges , and make them whole for any loss of pay they may have suffered by
reason of the discrimination against them, in the manner set forth above in the
section entitled "The Remedy."
(b) Disestablish Herrin Employees Shop Committee as the representative of any
of its employees in dealing with it regarding wages, hours of employment, or any
term or condition of employment.
(c) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards , personnel records and reports, and all other records necessary to determine the
amount of backpay due and the right of reinstatement under terms of this Recom-
mended Order.
(d) Post at its terminal in Houston , Texas , copies of the attached notice marked
"Appendix ." a Copies of said notice , to be furnished by the Regional Director for
Region 23 , shall, after being signed by the Respondent's authorized representative,
be posted by it immediately upon receipt thereof, and be maintained by it for a period
of 60 consecutive days thereafter , in conspicuous places, including all places where
notices to employees are customarily posted Reasonable steps shall be taken to
insure that such notices are not altered , defaced, or covered by any other material.
(e) Notify the said Regional Director , in writing , within 20 days from the receipt
of the Trial Examiner 's Decision , what steps it has taken to comply herewith 10
9In the event that this Recommended Order be 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 be enforced
by a decree of a United States Couit of Appeals, the words "a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order "
10 In the event that this Recommended Order be adopted by the Board, this provision
shall read: "Notify the said Regional Director, in writing, within 10 days from the
date of this Order, what steps the Respondent ha, taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to conduct our labor relations in compliance with the
National Labor Relations Act, we notify you that:
WE WILL NOT unlawfully discourage you from being members of International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America,
or any other union.
WE WILL NOT recognize Herrin Employees Shop Committee as the represent-
ative of any of you in dealing with us concerning wages or any other term of
employment.
WE WILL NOT violate any of the rights you have under the National Labor
Relations Act to join a union of your own choice or not to engage in union
activities.
ORMET CORPORATION 117
WE WILL offer reinstatement to the employees named below, and will give
them backpay from the time of their discharge:
Joe Tinkle Willie C. Rose Thomas Gary
Willie Johnson James Volter C. R. Samuels
Robert Hoke George Fontenette R. J. Washington
James Washington
HERRIN TRANSPORTATION COMPANY,
Employer.
Dated------------------ - By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948 , as amended , after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board 's Regional Office , 6617 Fed-
eral Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. Capitol
8-0611 , Extension 296, if they have any questions concerning this notice or com-
pliance with its provisions.
Ormet Corporation and Billie M. Fox
Baton Rouge Metal Trades Council , AFL-CIO and Billie M.
Fox, Charging Party. Cases Nos. 15-CA-2391 and 15-CB-672.
February 17, 1965
DECISION AND ORDER
On October 30, 1964, Trial Examiner A. Norman Somers issued
his Decision in the above-entitled proceeding, finding that the
Respondents had engaged in certain unfair labor practices alleged
in the complaint and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the Respondents
filed exceptions to the Trial Examiner's Decision and briefs in
support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Brown].
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 en-
tire record in this case, including the Trial Examiner's Decision, the
exceptions, and the briefs, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations.
151 NLRB No. 12.