Houston and North Texas Motor Freight Lines, Inc.

National Labor Relations Board - Board Decisions

Mar 28, 1950

88 N.L.R.B. 1462 (N.L.R.B. 1950)

In the Matter of HOUSTON AND NORTH TEXAS MOTOR FREIGHT LINES,
INC. and DALLAS GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS,
LOCAL UNION 745, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
A. F. L.
Case No. 16-CA-83.-Decided March 28, 1950
DECISION
AND
ORDER
On October 31, 1949, Trial Examiner Charles W. Schneider 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 it 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. The
Respondent has requested oral argument. This request is denied
inasmuch as the record and brief, in our opinion, adequately present
the issues and the positions of the parties.
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 Respondent asserts, both in its exceptions and brief, that the
Trial Examiner has made findings contrary to the record and that
he has shown bias and prejudice against the Respondent. We find
these assertions unjustified?
' Because no exception has been filed to the ruling of the Trial Examiner granting Re-
spondent's motion to dismiss the 8 (a) (3) allegation of the complaint as to Compton, we
do not pass upon the merit of that ruling.
2 For example , we note the Respondent ' s assertion that the record refutes the Trial
Examiner ' s finding that "Valentine did not ask to see any evidence of representation, or
suggest that the Respondent would consent to an election , or question Dixon 's claim that he
rep •esented a majority . However, on cross-examination Valentine clearly admitted that
he itid not ask to see the Union's authorization cards , that he did not ask Dixon to consent
to in election , and that he did not say the Company would agree to a consent election.
Mo-eover , Valentine 's question of Dixon, "Are you sure you have organized them?" is not
a refutation of the Trial Examiner ' s finding. Nor do we think the Examiner exhibited
"ill will" in "begrudgingly " accepting the Respondent ' s testimony as to Compton , who did
not testify . Patently Compton 's presence in the group requesting reinstatement on July
8, 1948, is difficult to reconcile with the lack of interest in reinstatement which Valentine
attributed to him.
88 NLRB No. 252.
1462
HOUSTON AND NORTH TEXAS MOTOR FREIGHT LINESI, INC. 1463
In its brief the Respondent contends that the Board lacks jurisdic-
tion in this matter because of the allegedly defective execution of the
charge. The original charge was filed by M. R. Dixon as business
manager of the Union and the amended charge by L. N. D. Wells, Jr.,
as attorney for the Union. Both were submitted on the form pro-
vided therefor by the Board and duly subscribed and sworn to before
Marie Schuler, a notary public as indicated by the attached notarial
seal. It is clear that both comply with the Board's own requirements
set forth in its Rules and Regulations, Series 5, Sections 203.9 and
203.11, as well as Section 202.2 of the Board's Statement of Procedures,
which rules and statement are the sole criteria in this matter, as the
manner of executing charges is not covered by the Act.
The Board has considered the Intermediate Report, the exceptions
and brief, and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner,
with the following additions and modifications.
1. We agree with the Trial Examiner that by Horace Thames' state-
ments in his conversations with Tillery beginning June 19, 1948, the
Respondent interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed in Section 7 of the Act, thus violating
Section 8 (a) (1) of the Act.3
We also find that Valentine's interrogation of Hartzo and Simmons
as to the reason for the employees' interest in the Union, as described
by the Trial Examiner, and the Respondent's insistence upon isolating
the strikers from each other and interviewing them individually when
they applied for reinstatement,4 constituted interference, restraint,
and coercion violative of Section 8 (a) (1) of the Act.
2. We also find in accord with the Trial Examiner that the Re-
spondent discharged Lorraine Chilton and R. A. Cosby because of
their union and concerted activities and to evade bargaining with the
Union, and that by such discharges the Respondent discriminated in
regard to the hire or tenure of employment of these employees in vio-
lation of Section 8 (a) (3) of the Act, thus violating Section 8 (a)
(1) of the Act by interfering with, coercing, and restraining its em-
ployees in the exercise of rights guaranteed them in Section I.
We also adopt the Trial Examiner's finding that the Respondent
refused, without any valid justification, to reinstate Burgoon, Hartzo,
Simmons, and Teague when they applied unconditionally for reinstate-
ment at the end of the strike, thereby violating Section 8 (a) (3) and
Section 8 (a) (1) of the Act. When these employees presented
3 N. L. R. B. v. Minnesota Mining & Mfg . Co., 179 F. 2d 323 (C. A. 8 ) ; Empire Pencil
Company, 86 NLRB 1187; Standard-Coosa-Thatcher Company, 85 NLRB 1358.
4S ee footnote 5.
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
themselves for work, in a group, the Respondent unlawfully required
them to submit to personal interviews as a condition of reinstating any
of them upon any terms,5 and expressly refused to reinstate Burgoon,
Hartzo, and Simmons that day. The Trial Examiner found, and we
agree, that Teague was offered no more than a temporary assignment
to clear off her desk, plus the opportunity to discuss with Valentine
some possible future employment as a new employee, whose tenure
had been broken as a penalty for striking.6 Moreover, even if it were
true, as the Respondent contends, that Teague voluntarily `vent on
"strike" again 7 when she realized that the Respondent had discrimi-
natorily refused to reinstate some of her fellow strikers, our finding
and order as to her would be the same."
Having refused, in violation of Sections 8 (a) (1) and (3) of the
Act, to reinstate Burgoon, Hartzo, Simmons, and Teague on July 8,
1948, the Respondent must now be ordered to offer reinstatement to
these employees, and make them whole for any loss of pay they have
incurred as a result of the discrimination against them. This obliga-
tion of the Respondent was not discharged, as to Hartzo and Simmons,
by its letters of July 10, quoted in the Intermediate Report. Those
letters, which expressly referred to the conversations of July 8, at
most reiterated the suggestion that the Respondent might be willing to
rehire Hartzo and Simmons as new employees. The letters contained
no adequate offer of reinstatement.' Moreover, as Hartzo and Sim-
mons discovered upon investigation, the Respondent made no over-
tures to the other strikers at the same time ; there was no indication that
it had abandoned the technique of treating the strikers on an individual
5 In Spencer Auto Electric, Inc., 73 NLRB 1416 , 1421 , a similar condition upon the rein-
statement of striking employees was held discriminatory because it operated to "deprive
the strikers of their collective protection at a time when they required it most, namely, at
the abandonment of what was to them an unsuccessful strike, by isolating each applicant
from the group and treating each applicant on an individual basis . Such conduct amounted
to a denial of their continued employee status and of the right to group reinstatement
which they enjoyed . . .
In this case , moreover, it is apparent from Bradley ' s statement to Dixon on July 7, 1948,
and from Valentine 's conversations with lartzo and Simmons the next day , that the
Respondent ' s design in interviewing the returning strikers individually was to discourage
them from adhering to the Union.
Compare Pullman Standard Car Manufacturing Company, 76 NLRB 1254, which is clearly
distinguishable from this case.
6 Contrary to the Respondent 's contention in its brief, we find that the Respondent's
statements and conduct , including its treatment of Teague's fellow strikers , induced Teague's
reasonable belief that Valentine was refusing , on July 8 , to reinstate her to her former
position on a permanent basis. In the circumstances , she was justified in leaving the
Respondent 's place of business without soliciting any further discussion with Valentine as
to the terms upon which he might "maybe," offer her work.
7It is true that Teague so testified on cross-examination but it is not clear that she
understood the legal purport of the word "strike " as used in this context . Considered in
its entirety , her testimony negates . the implication that she was reinstated and then left
voluntarily.
8 Draper Corporation , 52 NLRB 1477 , 1478 ct seq ., set aside on other grounds , 145 F. 2d
199 (C. A . 4) ; Rapid Roller Co. v. N. L. R. B., 126 F. 2d 452 , 461 (C. A. 7).
9 See N. L. R. B. v. Electric City Dyeing Co., 178 F. 2d 980 ( C. A. 3).
HOUSTON AND NORTH TEXAS MOTOR FREIGHT LINES, INC. 1465
basis in order to discharge them from continuing their collective
activity.
On July 15, the Union wrote to the Respondent stating, among other
things, that Hartzo and Simmons had asked the Union to reply to the
July 10 letters for them, that the Union was entitled to bargain col-
lectively with the Respondent as the duly authorized majority repre-
sentative of the Respondent's clerical employees, and that all discus-
sions regarding reinstatement of the strikers should be had with the
Union as their representative. The Respondent argues, in substance,
that by this communication Hartzo and Simmons resumed the position
of employees striking for recognition of their union, and thereby
relieved the Respondent of its obligation to offer them reinstatement
with back pay. We find this argument without merit. At the time
when it received the letter from the Union, the Respondent was in
default. Apart from its unlawful refusal to recognize and bargain
with the Union, it had insisted upon dealing with the returning strik-
ers on an individual basis as if they were applicants for new employ-
ment, rejected the unconditional application for reinstatement made
by all the strikers, first through the Union on July 7 and then in person
on July 8, and disregarded the right of these employees to have the
Union act as their collective spokesman in discussing their reinstate-
ment.10 In these circumstances the Respondent cannot rely upon the
Union's letter, standing alone as it does,11 to explain or excuse its con-
tinued failure to tender to Hartzo and Simmons, as well as to Burgoon
and Teague, the unqualified offer of reinstatement to which they were
entitled.
3. Turning to the 8 (a) (5) allegation of the complaint; we find, in
accord with the Trial Examiner, that on and after July 1, 1948, the
Respondent, in violation of Section 8 (a) (5) and thereby Section
8 (a) (1), refused to bargain with the Union as the majority repre-
sentative of its clerical employees, and that such refusal was not
motivated by any bona fide doubt that the Union represented a ma-
jority of said employees in a unit appropriate for bargaining.
10 Compare Section 7 of the Act and Section 9 (a), which assures to employees the right'
to act as a group, independent of any statutory bargaining agent, in presenting grievances.
11 We do not construe this letter of July 15 as a declaration that Hartzo and Simmons
would decline to be reinstated except upon condition that the Respondent recognizes the
Union for the purposes of collective bargaining. Moreover, even if the letter were fairly
construable as having that purport we could not properly infer, without convincing
evidence, that the Respondent's failure thereafter to offer to reinstate these employees was
due to any reliance upon the Union's communication. The Respondent had denied the
Union's previous request, made on July 7, that it be treated as the agent and spokesman of
the striking employees for the purpose of applying for reinstatement. The Respondent is,
therefore, scarcely in a position to suggest that it treated the Union as the agent of its
employees for the purpose of anticipatorily rejecting an offer of reinstatement, to their
serious prejudice.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We note that in arriving at this majority finding the Trial Examiner
has counted two employees, Canada and Ivy,12 whom we gonsider
temporary employees. Valentine's testimony with respect to the
employment of Canada and Ivy on June 21, 1948, was confusing.
He stated that "we always put a boy upstairs" (where the files were
kept) and "bring him down if he develops." Just prior to this ex-
planation about Canada and Ivy, Valentine had testified that one
Bobby Young had been hired on June 16, 1948, as a file clerk. Later
Valentine testified that the Respondent's August 1947 move of the
office necessitated "2 boys up there to straighten up." Recalled to the
stand later, Valentine said all three boys were hired for "no specified
time." Hartzo, who did some secretarial work for Valentine as well
as general office work, testified that Young was a file clerk and that
she "understood" that Canada and Ivy were employed "strictly to
straighten up the upstairs, which was used as a file room." From
the testimony we think it a fair inference that the Respondent re-
quired only one boy for filing, and we find that Canada and Ivy were
.hired temporarily to do a rearranging job in the file room, with no
expectancy of regular employment. As temporary employees are
consistently held ineligible to vote in Board elections in proceedings
under Section 9 of the Act,13 such employees should not be counted
in determining, in an 8 (a) (5) case, whether a union claiming to
represent the unit has attained a majority 14 To do so might easily
frustrate the organization of permanent employees whose interest is
paramount. Of course, even if Canada and Ivy were counted for
majority purposes, the Union in this case, as found by the Trial Ex-
aminer, had a majority of 8 out of 15 on and after June 22, 1948. Not
counting Canada and Ivy because of their temporary employment,
the majority was 8 out of 13.15
1' In this connection the Respondent excepts to the Trial Examiner 's finding that Canada
and Ivy were hired as insurance against the Union ' s attaining a majority . Although the
record strongly suggests such possibility , we agree with the Respondent that it does not
conclusively support it. Accordingly , we do not adopt the Trial Examiner ' s conclusion
that the Respondent ' s motive in hiring them was unlawful.
' See the Board 's 11th Annual Report, p . 21 ; 13th Annual Report, p. 33 , footnote 82.
14 Similarly in W. W. Holmes , et at ., 72 NLRB 39, 45, and Supersweet Feed Company
Incorporated, et at ., 62 NLRB 53 , we did not count for purposes of union majority employ-
ees in the armed services . The Board observed that the interest in conditions and terms
of employment of employees then at work outweighed the more remote interest of employees
on military leave.
15 The Respondent in its representation petition filed the afternoon of July 6, 1948 (Case
No. 16-RC-8, dismissed by the Regional Director January 5 , 1949 ; said action sustained
by the Board February 24, 1949 ), described the unit as "office clerks" and specified the
number of employees in it as "11 ." From the Respondent 's exceptions in this proceeding,
it appears that it was excluding Chilton and Cosby because no longer employed , Burgoon
on the assumption that he quit on July 6 immediately after the strike was called, and
Tillery because he was a supervisor . As 8 (a ) ( 3) discrimination with respect to Chilton,
Cosby, and Bnrgoon is found herein , they are of course to be included in the unit. Like-
wise Tillery should be included because the record does not sustain the Respondent 's conten-,
HOUSTON AND NORTH TEXAS MO'TOR FREIGHT LINES, INC. 1467
The Remedy
We have found that the Respondent has refused to bargain in viola-
tion of Section 8 (a) (5) and 8 (a) (1). of the amended Act and has
engaged in other conduct violative of Section 8 (a) (1) and 8 (a) (3)
of the amended Act. We shall order the Respondent to cease and
desist from engaging in such conduct. In our opinion the Respond-
ent's conduct discloses a fixed purpose to defeat self-organization and
its objectives. Because of the Respondent's unlawful conduct and its
underlying purpose we are convinced that the unfair labor practices
found are persuasively related to the other unfair labor practices
proscribed by the Act and that the danger of their commission in the
future is to be anticipated from the course of the Respondent's conduct
in the past. The preventive purpose of the Act will be thwarted
unless our Order is coextensive with the threat. In order, therefore, to
make effective the interdependent guarantees of Section 7, to prevent
a recurrence of unfair labor practices, and to minimize strife which
burdens and obstructs commerce, and thus to effectuate the policies of
the amended Act, we will order that the Respondent cease and desist
from infringing in any manner upon the rights guaranteed by
Section 7 of the amended Act.
ORDER
Upon the basis of the above findings of fact and the entire record in
the case, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations Board hereby
orders that the Respondent, Houston and North Texas Motor Freight
Lines, Inc., Dallas, Texas, and its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with the Dallas General
Drivers, Warehousemen and Helpers, Local Union 745, International
Brotherhood of Teamsters, A. F. L., as the exclusive representative of
all office employees of the Respondent employed. at its Dallas, Texas,
office, excluding city pick-up and delivery drivers, dockmen and help-
ers, warehousemen, line drivers, and supervisory employees as defined
in the Act;
- (b) Discouraging membership in Dallas General Drivers, Ware-
housemen and Helpers, Local Union 745, International Brotherhood of
Teamsters, A. F. L., or any other labor organization of its employees
;tion that Tillery was a supervisor. ' Rather it indicates that his authority to direct work
was of a clerical nature, within the meaning of Section 2 (11) of the Act, involving billing
and accounting corrections , and that lie had no authority to hire, but on one occasion,
when asked to do so, had secured an applicant as a replacement for Cosby.
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by discharging or refusing to reinstate any of its employees, or by dis-
criminating in any other manner in regard to their hire or tenure of
employment or any term or condition of their employment;
(c) Interrogating employees in regard to their membership in,
interest in, identification with, or activity on behalf of Dallas Gen-
eral Drivers, Warehousemen and Helpers, Local Union 745, Inter-
national Brotherhood of Teamsters, A. F. L., or any other labor
organization of its employees, or in any other manner interfering
with, restraining, or coercing employees, in the exercise of their right
to self-organization, to form labor organizations, to join or assist
such organizations, 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,
or to refrain from any or all of such activities, except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as authorized
in Section 8 (a) (3) of the Act, all as guaranteed in Section 7 of
the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Bargain collectively with Dallas General Drivers, Warehouse-
men and Helpers, Local Union 745, International Brotherhood of
Teamsters, A. F. L., as the exclusive representative of its employees
in the appropriate unit, and embody any understanding reached in a
signed agreement ;
(b) Offer Lorraine Chilton, R. A. Cosby, Wanda Hartzo, Mildred
Simmons, Charlotte Teague, and Roy M. Burgoon, immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privi-
leges, and make each of them whole for any loss of pay he or she
may have suffered by reason of the Respondent's discrimination, by
payment of a slim of money equal to that which would have been
earned as wages from the date of discharge or refusal to reinstate
to the date of the offer of reinstatement, less his or her net earnings
during that period : in the case of Chilton from June 23, 1948; Cosby
from July 3, 1948; and in the cases of Hartzo , Simmons, Teague,
and Burgoon, from July 8, 1948;
.(c) Post at its plant and office in Dallas, Texas, copies of the notice
attached hereto and marked Appendix A 16 Copies of said notice,
to be furnished by the Regional Director for the Sixteenth Region,
11 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words : "A DECISION AND ORDER ," the words : "A
DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
HOUSTON AND NORTH TEXAS MOTOR FREIGHT LINES, INC. 1469
after having been duly signed by authorized representatives of the
Respondent, shall be posted by the Respondent immediately upon
receipt thereof and maintained by it for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material ;
(d) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
CHAIRMAN HERZOG and MEMBER STYLES took no part in the con-
sideration of the above Decision and Order.
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, we hereby notify our employees that :
WE WILL NOT by means of interrogating or in any other man-
ner interfere with, restrain, or coerce our employees in the exer-
cise of their- right to self-organization, to form labor organiza-
tions, to join or assist DALLAS GENERAL DRIVERS, WAREHOUSEMEN
AND HELPERS, LOCAL UNION 745, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, A. F. L., or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of collec-
tive bargaining or other mutual aid or protection, or 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 Act.
AVE, WILL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent posi-
tions without prejudice to any seniority or other rights and privi-
leges previously enjoyed, and make them whole for any loss of
pay suffered as a result of the discrimination.
Lorraine Chilton Mildred Simmons
R. A. Cosby Charlotte Teague
Wanda Hartzo Roy M. Burgoon
WE WILL BARGAIN collectively upon request with the above-
named union as the exclusive representative of all employees in
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the bargaining unit described herein with respect to rates of pay,
hours of employment, or other conditions of employment, and
if an understanding is reached, embody such understanding in
a signed agreement. The bargaining unit is :
All office and clerical employees at the Dallas, Texas, office,
exclusive of city pick-up and delivery drivers, docklnen and
helpers, warehousemen, line drivers, and supervisory employees.
All our employees are free to become or remain members of the
above-named union or any other labor organization, or to refrain from
so doing, except to the extent that this right may be affected by an
agreement in conformity with Section 8 (a) (3) of the amended Act.
We will not discriminate in regard to hire or tenure of employment or
any term or condition of employment against any employee because
of membership in or activity on behalf of any such labor organization.
HOUSTON AND NORTH TEXAS
MOTOR FREIGHT LINES, INC.,
Employer.
By---------------------------------
Dated-------------------- ( 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 AND RECOMMENDED ORDER
Mr. Joseph A. Jenkins, for the General Counsel.
Messrs. Carl L. Phinney and Leroy Hallman, of Dallas, Tex., for the
Respondent.
Mullinax, Wells & Ball, by Mr. L. N. D. Wells, Jr., of Dallas, Tex., for the
Union.
STATEMENT OF THE CASE
Upon a charge filed July 13, 1948 , and an amended charge filed November
28, 1948, by Dallas General Drivers, Warehousemen and Helpers, Local Union
745, herein called the Union, the General Counsel of the National Labor Relations
Board, by the Regional Director for the Sixteenth Region (Fort Worth, Texas),
issued his complaint dated April 20, 1949, against Houston and North Texas
Motor Freight Lines, Inc ., herein called the Respondent , alleging that the Re-
spondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1), (3), and ( 5) and Section
2 (6) and (7) of the National Labor Relations Act (61 Stat. 136), herein called
the Act. Copies of the original and amended charges were duly served upon the
Respondent on, respectively, July 15 and November 26, 1948. Copies of the
complaint and 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) discharged Lorraine Chilton about June 23, 1948,
and R. A. Cosby about July 3, 1948, because of their union or concerted activities ;
(2) about July 1, 6, 7, and 16, 1948, refused to bargain collectively with the
HOUSTON AND NORTH TEXAS! MOTOR FREIGHT LINES, INC. 1471
Union; (3) engaged in enumerated acts of restraint and coercion of employees;
(4) by these unfair labor practices caused its employees to go on strike; and
(5) about July 8, 1948, refused to reinstate Wanda Hartzo, Mildred Simmons,
Charlotte Teague, Billy Compton, and Roy (or Ray) M. Burgoon, because of their
union activity, or because they had engaged in or refused to work during the
strike.
Thereafter, the Respondent filed a motion for further particulars, and also an
answer denying the commission of unfair labor practices.
Pursuant to notice, a hearing was held on May 17 through May 20, and July
6 and 7, 1949, at Dallas, Texas, before Charles W. Schneider, the undersigned
Trial Examiner. The General Counsel, the Respondent and the Union were
represented by counsel and participated in the hearing. All parties were afforded
full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues.
At the beginning of the hearing the General Counsel, pursuant to inquiry
from the Trial Examiner, stated the allegations of the complaint with more
particularity with regard to some of the particulars requested by the Respondent.
With respect to other matters requested in the Respondent's motion, the request
was denied. At the close of the evidence all parties argued the issues orally
upon the record. Since the close of the hearing the Respondent and the Union
have submitted briefs, which have been fully considered.
The Dismissal as to Compton
At the close of the General Counsel's case, the Respondent moved to dismiss
the allegation in the complaint that Billy Compton had been refused reinstate-
ment on July 8, 1948. In this he was joined by the General Counsel. In my
opinion a prima facie case of discriminatory refusal to reinstate Compton had
been made out at that point in the case, and I deem insufficient the reasons
advanced by the General Counsel for dismissal as to Compton.' Nevertheless,
on the assumption that I was without authority to exercise discretion with
respect to the General Counsel's position, and over objection by the Union,
the motion was granted. In view of the importance of the issue in the adminis-
tration of the Act, it seems desirable that I set out the reasons for the ruling,
for evaluation by the Board.
That the General Counsel has some virtually unlimited authority to decline
to issue or to prosecute complaints seems clear from Section 3 (d) of the statute.
Thus, he is granted "final authority, on behalf of the Board, in respect of the
investigation of charges and issuance of complaints under Section 10, and in
respect of the prosecution of such complaints before the Board." His powers
are therefore greater than those possessed by prosecuting attorneys, whose
authority to nolle pros, once an indictment is returned, is generally subject
to approval by the court. Thus, there is little doubt (without suggesting that
he would so do) that the General Counsel may refuse to issue, or before hearing
withdraw, any complaint for any reason he chooses, arbitrarily or otherwise.
See Sections 203.18 and 203.19 of the Board's Rules and Regulations, Series 5,
amended August 18, 1948.
Necessarily, however, there is some terminal point at which the complete power
of the prosecuting authority to determine what violations he is willing to process
is subject to judicial authority. Section 3 (d) seems specifically to declare
' Briefly, that Compton, although notified, did not appear at the hearing to testify as
part of the General Counsel 's case.
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one such limitation when it states that the final authority granted shall be
"in respect of . . . prosecution . . . before the Board." [Emphasis supplied.]
After that stage of adjudication has been reached, the General Counsel's
exclusive power to determine whether there shall be further proceedings
definitely • appears to be exhausted. Consonance of Board procedure with our
judicial concepts no doubt imposes other limitations. Thus, where a charge
is withdrawn, the General Counsel's authority to proceed terminates, and the
complaint must be dismissed whatever the General Counsel's position, since a
charge is a jurisdictional requirement. See Section 203.19 of the Board's Rules
and Regulations! There are no doubt other instances which practical adminis-
tration will disclose.
As I View Section 3 (d) of the statute, however, the General Counsel has
peremptory authority to secure the dismissal of any portion of a complaint up
to the time all the evidence is in. And this without approval by the Trial
Examiner , and even though the facts may suggest clear violation of the law.
Whether he retains such authority beyond that point it is unnecessary to deter-
mine here. The General Counsel would be able, I would suppose, to secure
peremptory dismissal of a portion of a complaint even after hearing began, and
before the introduction of evidence. If so, he ought, I apprehend, to be able
to do it at any time prior to full litigation of the issue. In my view, therefore,
(and the ruling made at the hearing was upon this hypothesis) up to the time
all parties have rested, a trial examiner has no discretion to exercise upon a
motion by the General Counsel to dismiss a portion of his complaint; nor any
authority to judge the adequacy of the reasons which move the General Counsel
to seek dismissal.
Section 203.34 of the Rules and Regulations, of course, gives the trial exam-
iner authority to "inquire fully into the facts as to whether the respondent has
engaged in . . . an unfair labor practice," or to "dispose of procedural
requests or similar matters," or to "dismiss complaints or portions thereof."
These provisions must, however, be read in connection with Section 3 (d) of
the statute.
Section 203.18 of the Rules and Regulations provides as follows :
Withdrawal-Any complaint [which has been issued] may be withdrawn
before the hearing by the Regional Director on his own motion.
If this Section referred to the General Counsel, rather than to the Regional
Director, it would by implication subject the General Counsel's authority to
withdraw complaints, after the hearing had begun, to the discretion of the trial
examiner. The specification of the Regional Director, however, seems to make
such an interpretation inapplicable.8
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Houston and North Texas Motor Freight Lines, Inc., the Respondent, is a
corporation organized under the laws of the State of Texas, having its principal
office in Dallas, Texas. It operates as a common carrier of freight by motor
2 Under what circumstances a charge may be withdrawn over objection by the General
Counsel It is unnecessary to discuss here.
'Whether the recent decision of the Board in the case of Cathey Lumber Company,
86 NLRB 157, issued since the close of the instant hearing, assumes the existence of a
principle contrary to that followed in the present case, is left to the Board to determine.
HOUSTON AND NORTH TEXAS MOTOR FREIGHT LINES, INC. 1473
vehicle. During the 12-month period ending December 31, 1948, the Respondent
transported substantial amounts of tonnage over the highways of Texas and
Oklahoma, under certificates granted by the Interstate Commerce Commission,
the Railroad Commission of Texas, and the Corporation Commission of Okla-
homa, at various points interlined freight with other common motor carriers at
Dallas, Texas, and other interlining points along its routes of operation.
The operations of the Respondent were such as to cause substantial amounts
of tonnage to be delivered and transported from States other than the State of
Texas, into and out of the State of Texas for the year ending December 31, 1948.
Gross revenue at the Dallas, Texas, terminal, which is the terminal involved
in the present proceeding, was in excess of $2,500 per day, and in excess of
$900,000 per year system-wide.
The Respondent admits that it is engaged in interstate commerce.
II. THE LABOR ORGANIZATION INVOLVED
Dallas General Drivers, Warehousemen and Helpers, Local Union 745, Interna-
tional Brotherhood of Teamsters, A. F. of L., is a labor organization admitting to
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
The Respondent's home office is at Dallas, Texas, where it operates a terminal.
Both terminal and office are on the same premises. The instant case arises pri-
marily out of an attempt by office employees at Dallas to secure union recognition,
which resulted in a strike, an injunction, and an asserted refusal to reinstate the
strikers. It is charged that the Respondent refused to bargain with the Union,
although knowing that the Union represented a majority ; and that it refused to
reinstate the strikers because of their strike and union activity. In addition, it
is charged that, within the 2 weeks prior to the strike, the Respondent discharged
two employees, Chilton and Cosby, because of their union membership and
activity. These charges are denied.
A. The organization of the Union; the strike and the refusal to reinstate
The Union is an of Bate of the American Federation of Labor Teamsters
International. Since 1939 the Union has also represented other employees of the
Respondent. Thus, the "over-the-road" or "line" truck drivers, the city pickup
and delivery drivers, and dockmen at the Respondent's Oklahoma City, Dallas,
and Houston terminals, and the mechanics in Dallas, are, and have been for some
time past, covered by collective bargaining contracts. The Union's initial attempts
at securing recognition in 1938 and 1939 resulted in several strikes, one lasting
some 97 days. According to the undisputed testimony of C. E. Bradley, vice
president and general manager of the Respondent, one of these strikes was a
"jurisdictional" strike by members of another union opposing the Teamsters.
The Beginning of Organizational Activity
During the early part of June 1948, some of the office employees at Dallas
became interested in union organization as a means of improving their working
conditions. So far as appears from the record the movement originated with
the employees themselves. Most prominent in this regard was Lorraine Chilton,
an interline clerk in the Respondent's office. Chilton contacted the Union, and
secured blank application cards which she distributed among the office employees.
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subsequently she arranged for union representatives to meet the employees on
June 21. By that time a substantial number of the office employees had indicated
their willingness to authorize the Union to act as their bargaining representative.
As the Board's experience has disclosed with respect to union activity in a small
enterprise, the employees' interest soon became known to the Respondent's officials
and supervisors.
Several days prior to June 19, 194S, employee Roy Burgoon gave one of the
Union's application cards to W. E. Valentine, the Respondent's general auditor,
who was in general charge of the office. Valentine testified that he "just kind
of laughed it off" ; he "didn't think there was any chance of them organizing
the office." 4 Valentine conveyed this information to Horace Thames, his sub-
ordinate supervisor , who is the Respondent 's traffic manager and claim agent.
June 19: Thames' First Conversation with Alfred Tillery
On Saturday, June 19, 1948, word was passed around the office that a meeting
of interested employees with a union representative, arranged by Chilton, would
be held at the union office on the evening of June 21. On the same day Horace
Thames spoke to Alfred Tillery, a rate clerk, about the union activity. There
is dispute as to a portion of this conversation.
Undisputed or admitted is that Thames told Tillery that he wished to know
what Tillery had heard about the union activity, and further, that he understood
that all employees but two (James W. Thames, the son of Horace Thames, and
"Jimmy" Anderson) had signed applications for membership in the Union. Till-
ery replied that that was not exactly true ; that he had not signed an application
himself ; but that he could not answer for the rest of the employees. Also un-
denied is that Thames asked Tillery whether he knew where he could get another
bill clerk and that Tillery replied that he knew of someone he thought he could
get.
Disputed by Thames, however, is Tillery's further testimony to the effect that
Thames went on to say that so far the Union had not contacted the Respondent,
but that before it did Lorraine Chilton, interline clerk, and R. A. Cosby, the bill
clerk, were going to be discharged.
Tillery is no longer employed by the Respondent and has no apparent present
interest in the dispute. He was highly regarded by his superiors while in the
Respondent's employ. He did secure a replacement for Cosby. Since Thames
admitted asking Tillery to secure a replacement for Cosby it is likely that he told
him that Cosby would be discharged. It therefore seems more probable, under
the circumstances, as well as from my observation, that Tillery's testimony is
credible. It is consequently credited.
On the same evening Thames asked his son, James W., who is employed as a
bookkeeper in the Respondent's office, whether he had signed a union card.
June 21: The Union Meeting
By June 22, 1948, of the approximately 15 nonsupervisory employees in the
office, 8 (Lorraine Chilton, R. A. Cosby, Charlotte Teague, Billy Compton, Alfred
4 Valentine 's recollection was uncertain as to the date he received the card. He testified
that he thought it was about June 23 or 24. In a statement sworn to on October 11, 1948,
however, he stated that his first knowledge of union activity was on July 1, 1948, when
the Union requested recognition , an event described hereinafter . It is apparent however,
from the testimony of Horace Thames and Alfred Tillery , adverted to hereafter, that
Valentine's knowledge that there was union activity among the office employees antedated
June 19.
HOUSTON AND NORTH TEXAS MOTOR FREIGHT LINES, INC. 1475
Tillery, Wanda Hartzo, Roy Burgoon, and Mildred Simmons) had signed
applications for membership in the Union. On the preceding evening, June 21,
at the request of Chilton, most of these employees met with M. R. Dixon,
secretary-treasurer and business manager of the Union, at the union office.
They gave Dixon their signed application blanks stating that they wished the
Union to act as their bargaining agent in the securing of higher wages and better
working conditions. They questioned Dixon as to the method of securing recog-
nition and negotiating a contract. Dixon told them of the various methods :
recognition on a card check, consent election, and Board-ordered election. With
regard to the latter method, Dixon stated that delays, sometimes as much as a
year or more, worked to the disadvantage of employees by deferring the
securing of higher wage scales, and that if the Respondent refused to recognize
their showing of majority, a strike would be the quickest method of securing
recognition. This action, however, he told them, he wanted only as a last resort.
The employees thereupon unanimously voted to strike for recognition if the
Respondent refused to accord it upon their showing of majority.`
June 22: Tillery's Second Conversation with Thames
Among those who signed an application at the June 21 meeting was Alfred
Tillery. On the following day, June 22, Tillery and Thames had another conver-
sation-this time upon the initiative of Tillery. There is little dispute as to the
substance of this conversation.
Tillery told Thames that because Thames had approached him about the Union,
he wished Thames to know that he had now signed an application. Thames re-
sponded that, although such action might be all right for the other employees,
he thought that it was "a mistake" for Tillery ; that the Company thought highly
of him; and that Tillery was in line to succeed Thames.6 It is clear from
Thames' further testimony that he regarded Tillery's affiliation with the Union
as militating against Tillery's advancement with the Company, and that that
was the impression he attempted to convey to Tillery. Although testifying that
it was his personal and not his official opinion that he was expressing, Thames'
testimony does not disclose that he clearly stated such qualification to Tillery.
In any event, Thames was a supervisor of the Respondent, Tillery's immediate
supervisor who would normally have to pass upon the question of Tillery's
advancement ; and in any event held this opinion after 15 years of service with
the Respondent.
Chilton Is Discharged
On June 23, 1948, 1 day after Thames' conversation with Tillery related above,
2 days after the union meeting, and 4 days after Thames had told Tillery that
she would be let go, General Auditor Valentine called Lorraine Chilton into his
office, and, without prior notice or any explanation, handed her two checks, one
The Union offered to prove that the processing of a representation case in the Dallas area
required 6 months to 2 years and that this condition permitted the maintenance of low
wage standards in the case of the involved employees, to the detriment of the employees
and competitors of the employer. This evidence was rejected.
I Thames' testimony as to the conversation, which is much the same as Tillery' s, is as
follows :
A. Tillery came to the office and told me, he said, "you asked me about the Union."
He said, "I told you I had not signed." He said, "I want to tell you now that I have."
I said, "I believe you have made a mistake." I said, "you were next in line behind me.
The company thinks an awful lot of you and your work. I believe you have made a
mistake, personally. The rest of them I couldn't answer, but I do think that you
have made a mistake." I did make that statement.
852191-51-94
0
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the week's salary, the other for 1 week's notice and discharged her saying,
"We won't need you any more."
The Respondent asserts that Chilton was let go in a reduction in force ; the
General Counsel asserts that she was discharged because of her union activity.
The issue is more fully discussed hereinafter.
About June 25 Thames had another conversation with Tillery concerning the
union activity. On this occasion Thames called Tillery out of his office and
drove him to a nearby barbecue stand. Tillery's credited testimony as to the
conversation is as follows :
... [Thames] asked me what could be done to stop all that, to prevent
it, and I told him that I didn't know of anything myself, and he wanted to
know what I would do if I was in his place, and I told him, "well, I guess
there wasn't much you could do," and he wanted to know how I hit it off
with some of the other employees, particularly Mrs. Teague, and I told him
since I didn't have anything to do with starting it that I wouldn't hardly
know how to go about it
The Demand for Recognition
On July 1, 1948 , Dixon made his first demand for recognition. On that day
he called at the Respondent's office and spoke to Roy Cates , the Respondent's
superintendent of operations . Cates referred Dixon to Auditor Valentine. Dixon
told Valentine that he represented a majority of the office employees and that
lie wished to know if the Respondent would recognize the Union as their bar-
gaining agent . According to Dixon, Valentine expressed surprise that the office
employees should want to join the Union, saying that he did not know that the
employees had "anything against him " ; that Dixon responded that so far as he
knew the employees had nothing against Valentine personally , but that they
wished to improve their wage and working conditions . Valentine told Dixon
that he had no authority to answer Dixon's request for recognition , and asked
for several days' time in which to concult certain stockholders who set the
Respondent 's policies . Dixon agreed to wait until Tuesday , July 6, for an
answer. That much of the conversation is undisputed . Dixon further testified,
however, and this Valentine denied, that he told Valentine that "if the Com-
pany was in a position to recognize the Union as a bargaining agent I had
the proof with me [the application cards signed by the employees ] and was ready
to show it to him that I did represent a majority of those employees." It is
conceded that Valentine did not ask to see any evidence of representation, or
suggest that the Respondent would consent to an election , or question Dixon's
claim that he represented a majority . While it appears quite likely, in view
of the decision of the employees at the June 21 meeting, that Dixon did make
such an offer , it is unnecessary , for reasons indicated hereinafter , to resolve
the conflict.
Valentine thereafter consulted C. E. Bradley , the Respondent 's vice presi-
dent and general manager and one of its four stockholders . Bradley told Valen-
tine, according to the former 's testimony, that
4 Thames, while giving a slightly different version of the conversation, did not deny
Tillery's testimony. According to Thames he asked whether there was anything he could
do to "help straighten this thing out" : that Tillery said that he "didn't think so." Thames
further testified that he was interested in Tillery personally, because Dixon was going to
"pull him out" on strike ; and that he wished to "stave off Mr. Tillery getting in anything
that might cause him to leave the Company." Thames' awareness of the strike plans
indicates the extent of the Respondent's knowledge as to the union activity.
HOUSTON AND NORTH TEXAS MOTOR FREIGHT LINES, rN'c. 1477
If it could be shown that [the Union] did represent a majority of the em-
ployees, why, of course, we would be compelled to negotiate with him as
their representative; until such time that it had been shown through the
various procedures that are available why, we could not do business with
Mr. Dixon on a contract.
Several days thereafter, on July 3, R. A. Cosby, the bill clerk, was discharged;
according to the General Counsel, because of his union activity ; according to
the Respondent because of his deficiencies as a bill clerk.
The Strike
On the morning of July 6, 1918, Dixon returned to, the Respondent's office to
get the Respondent's answer with respect to recognition. On this occasion Au-
ditor Valentine told Dixon that he had "disturbing news" for him; that the Re-
spondent had decided not to grant recognition and as he told Dixon, "Let [you]
established 1t4hat [you] . . . represent those employees." Valentine did not
request any proof of majority, or make any suggestions as to how to establish it.
It is admitted by Dixon that this time he did not offer to show the authorization
cards, although he testified that he had them with him.
Dixon asked Valentine if he would agree to a consent election. Valentine re-
sponded in the negative,' saying, to quote Dixon, "No, they weren't in that posi-
tion, he just wanted me to establish the fact whether or not I represented a
majority of those people."
Dixon thereupon said, "I think I can do that for you now." With that Dixon
walked into the general office, told the employees what had happened and said,
"Let's go." Compton, Simmons, Ellery, Hartzo, and Teague immediately walked
out on strike. Burgoon remained behind to complete some work, but about noon
he also walked out in support of the strike. Dixon got a piece of pasteboard,
wrote a strike sign on it which he nailed to a board, and the clerks began picketing
the office. Chilton was called and came down and participated in the picketing.
Burgoon did not picket, however, having been previously excused because of
war-incurred leg injuries. As he left about noon he told the rest of the strikers
that he was now "officially out" and was sorry that he could not picket.
The Respondent's drivers and mechanical department employees refused to
cross the picket line. Consequently all operations came to a halt.
That afternoon about 4: 30 p. in. the Respondent filed a petition with the
Regional Office of the Board alleging the existence of a question concerning the
representation of the office force. It also applied to the local court for an in-
junction against the picketing, which appears to have been wholly peaceful.
On the following morning, July 7, a restraining order was issued by the
District Court of the County of Dallas, enjoining the picketing. Upon service of
the order the picketing was abandoned.
The Requests for Reinstatement
Dixon immediately sought out Bradley and Cates and told them that since
the picketing had been enjoined the clerks were ready to return to their regular
jobs and asked for their reinstatement. Dixon's uncontroverted testimony is
that Bradley's response was that
B Dixon's testimony is not altogether clear as to whether the request for and denial
of consent election was in the July 1 or July 6 conference with Valentine. It is concluded
from the circumstances that it must have taken place on July 6. Dixon's testimony as
to the occurrence is not denied.
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He didn't know whether he would want any of those people coming back
to work for him, or not, it would depend on their attitudes, that he would
want to talk to them individually and find out what their general attitude
would be before he would say whether or not he would let any of them go
back to work for the Company.
In the same conversation Dixon was also told that he would not be recognized
as representing any of the employees and that all discussions with respect to
reinstatement would be with employees individually.
Dixon thereupon told the employees to go back to the Respondent and ask for
their jobs. At about 5 p. m. the same afternoon, July 7, Tillery, Teague, Compton,
and Simmons went into the office and spoke to Superintendent Cates who was
then the only person there. They told Cates that they were "ready to go back
to work." Cates replied that he had nothing to do with the office employees and
that they should return the next morning and talk to Auditor Valentine.
On the following morning, July 8, at the regular starting hour, all the striking
employees, namely, Simmons, Tillery, Compton, Teague, Hartzo, and Burgoon,
appeared at the office prepared to work. Each was individually interviewed by
Valentine.
Burgoon was apparently the first. He admittedly was not reinstated. Valen-
tine told him that he had left his job and had applied at an employment agency
for another job, and that he should "get [his] stuff and go on." Valentine's
testimony is that he discharged Burgoon "because he went off and tried to hunt
another job and left the office when I felt like he should have come back and
stayed there." 9
Of the remaining five strikers, only two-Tillery and Teague-were put to work.
There is no dispute as to the disposition of Tillery' s case. He was simply told.
by Valentine to go back to work and he did so. It is not contended that Tillery
was denied reinstatement. Teague worked for several hours under circum-
stances more fully discussed hereinafter.
The testimony is conflicting as to what Auditor Valentine told Teague, Simmons,
and Hartzo ; Compton did not testify.1° Auditor Valentine's testimony as to
what he told Simmons and Hartzo is as follows :
0 As has been indicated, Burgoon left the office around noon on July 6, telling Hartzo
that he was "out" on strike. There is conflict in the testimony of Thames and Burgoon,
unnecessary to resolve , as to the circumstances of his leaving . Burgoon's testimony, In
sum, is that he discussed the situation with Thames on the morning of July 6 after the
strike had started, and that he left with notice to and the acquiescence of Thames. This
Thames denies. It is admitted by Burgoon that he registered at an employment office
that afternoon. Vice President Bradley testified that he was informed by the employment
office (and this Burgoon denies) that Burgoon had quit. The testimony of Bradley does
not of course, establish what Burgoon told the employment office. Burgoon's testimony
left the distinct impression with me that he was the victim of a number of conflicting
loyalties, one to the Respondent, one to his fellow employees, and one to his own advance-
ment. But whatever the basis for his action, it seems quite clear from his conduct, which
is borne out by his testimony , that he ceased his work as a result of the labor dispute and
joined the strike. The fact that he applied for other employment in the interim does not
establish that he had quit. Section 2 (3) of the Act defines the word "employee" as
including "any individual whose work has ceased as a consequence of, or in connection with,
any current labor dispute . . . and who has not obtained any other regular and sub-
stantially equivalent employment . . Burgoon was in such status. It is therefore
found that he continued to be an employee of the Respondent.
10 Auditor Valentine testified without denial that he offered Compton reinstatement
when Compton appeared with the others, but that Compton declined it. In the absence of
denial this testimony, though irreconcilable with Compton's action in appearing and
asking for reinstatement , is credited.
HOUSTON AND NORTH TEXAS MOTOR FREIGHT LIMES, ITTC. 1479
. . . the gist of it was I told them the shape we was in right then, that
we couldn't use them for a few days until we got kind of organized around
there, and for them to get in touch with me in a few days, and we could
see what we could work out.
The testimony of Hartzo and Simmons is radically different from Valentine's.
Hartzo and Simmons were called in together by Valentine. Hartzo went into
Valentine's office first, Simmons joining them later. Hartzo's testimony is that
Valentine asked "what we were mad at the company about, just exactly why
we wanted a union?" According to Hartzo, she replied that the employees wanted
better wages and working conditions and less partiality. Hartzo's further
testimony is that Valentine responded that he was
Very sorry it all happened, he felt we had been led into something, that we
didn't understand at the time what we were doing, and that he had been
satisfied with all the employees, but he was forced at this time to tell us
that he could no longer use us, and maybe at some future date he could
reinstate us as new employees.
Simmons came in in time to be informed by Valentine, according to her testimony,
that he "couldn't use us any more, that maybe in a week he could use us as new
employees." Employment as new employees would have meant a reduction in
wages, from $0.90 to $0.75 an hour. Hartzo and Simmons then left. As they went
out Teague was working. She told them that she was clearing up her desk, that
she would be another hour or so and that she would then join them. Hartzo and
Simmons then called Dixon and told him that Valentine had refused to reinstate
them.
At about 9: 30 a. in., Simmons called Tillery and suggested that since the others
had not been permitted to return to work, Tillery cease working. Tillery there-
upon went to Valentine, explained the situation, and informed him that he was
leaving. Valentine said, with seeming regret, that since that was the way Tillery
felt about it "that is what he'd rather [Tillery] would do." Valentine regarded
Tillery highly. But although he was apparently much moved by Tillery's decision
and reluctant to see him go, Valentine gave no evident explanation to Tillery for
the failure to reinstate Hartzo and Simmons.
As Tillery left, Teague was cleaning up her desk. She told him to wait until
she had finished, which he apparently did. Teague completed her work, gave
it to Valentine, and said goodby. Valentine made no apparent comment.
As to Teague there is also conflict as to whether she was reinstated or not.
Teague was the cashier; she was admittedly put back to work, but according
to her, only temporarily, and she left when her work was finished. Valentine's
testimony, to the contrary, is that she was reinstated and thereafter voluntarily
left her job when Tillery left.
Teague's version is that Valentine asked her to clear up the unfinished work
on her desk and said that after that was completed, he would talk to her about
"maybe putting [her] back on doing something there at the company." Teague
thereupon went back to her desk. Teague's further testimony is that she under-
stood Valentine to mean that after clearing her desk of the unfinished work she
was to leave ; and that her leaving was pursuant to this understanding, and not
a voluntary cessation of work.
Valentine's testimony is that he told Teague to "go out in the office and go to
work." He denied stating that she was only to clean up her desk. He testified
that both Tillery and Teague were put back to work on a "permanent basis," and
that it was his intention, he said, to "put all [the employees] back to work."
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In resolving the various conflicts between the testimony of Valentine and that
of Simmons, Hartzo, and Teague, a number of objective factors are helpful.
First is the fact of numbers. Valentine's testimony is disputed by Hartzo, Sim-
mons, and Teague, whose accounts are substantially consistent. Other witnesses
for the General Counsel, Dixon and Burgoon, for example, have also disputed
Valentine's testimony in other respects. While it is quite possible, as judicial
experience has demonstrated, that the five may be mistaken or lying and the one
(Valentine) not, that possibility is less likely. On the fact of interest, all are
even; each has as much personal stake in the acceptance of his view as the
others. The versions of Simmons, Hartzo, and Teague, however, in addition
to being mutually supporting, are also consistent with Bradley's intimation to
Dixon on the previous afternoon to the effect that some of the employees might
be denied reinstatement. Tillery, whom the Respondent desired to retain, was
promptly and immediately reinstated. Burgoon, whose actions Valentine deemed,
to quote Burgoon, a "dirty trick," was discharged. In addition, although eco-
nomic factors are asserted as reasons for not immediately reinstating Hartzo
and Simmons, no such possible barrier was suggested by Bradley to Dixon ; it
was the employees' "attitudes" which would be determinative, according to Brad-
ley. Nor was it given by Valentine to Tillery. If work had been unavailable,
it seems certain that Valentine would have told Tillery so when the latter an-
nounced his intention to leave. The Respondent thought highly of Tillery and
wished to retain him. The supposition that Valentine would have permitted
Tillery to leave under a misapprehension of fact which it was in the Respondent's
interest to dispel, is not persuasive.
In addition, it is quite clear from the testimony that, although operations had
been suspended for 2 days, there was work that could be done. Operations re-
sumed on the 8th requiring the clerical force. In fact a new bill clerk, Hendrix.
was put to work on that day to replace Cosby, who had been discharged on July 3.
Apart from its significance as an indication that work was available, the hiring
of Hendrix affirmatively suggests discriminatory treatment as to the strikers.
No adequate reason appears as to why Hendrix, a new employee, should have
been put to work while old employees, qualified to perform his job, were informed
that no work was available. Simmons, for example, had filled that very position
for the Respondent when first employed. Hartzo was the secretary of Valentine
and Cates and worked on claims in her spare time. There is no apparent reason
why the strike should have eliminated Valentine's and Cates' need for secre-
tarial services. In addition, Hartzo's testimony is undenied that there was a
large backlog of claims on which she could have worked.
Valentine made no apparent comment to Teague when she left. It seems
unlikely that this would have been so if, as Valentine testified, Teague
had been reinstated. Moreover, whatever may have been Valentine's intent,
it seems clear that Teague believed her reinstatement to be only temporary.
This is indicated by her statement to Simmons and Hartzo when those two left
the office. She told them that she was clearing up her desk, which would take
her about an hour, and that she would meet them later. That was prior to
Hartzo's telephone calls to Dixon and to Tillery. There was therefore no contem-
plation at that time that Teague should leave her job in protest against the failure
to put Hartzo and Simmons to work. If there had been, Teague would scarcely
have continued to work. Her request to Tillery not to leave without her could
not have indicated an intention to strike or quit, for the reason that, if she had
such intention she would undoubtedly have made the same request of Hartzo and
Simmons, and have left with them.
HOUSTON AND NORTH TEXAS MOTOR FREIGHT LINES, INC. 1481
Upon the basis of these considerations, and observation of the witnesses,
it is concluded that the testimony of Hartzo, Simmons, and Teague substan-
tially reflects their interviews with Valentine and the circumstances under the
they left the office on the morning of July 8.
The Letter to Hartzo and Simmons
Under date of July 10, 1918, Valentine wrote the following letter to Hartzo
and Simmons :
You will recall our converstation regarding re-employment on the morning
of July 8th. I advised you at that time to get in touch with me in about
a week.
This is to advise, that I am now in a position to discuss the subject
further at your convenience, if interested please call at the office.
It will be noted that this letter refers to "re-employment" rather than rein-
statement and that it makes no definite offer of a position.
Hartzo and Simmons turned the letters over to the Union for reply. Under
date of July 15, 1948, Dixon answered them by letter to Bradley. This letter
stated in part that
All discussions with respect to [Hartzo's and Simmons'] reinstatement and
their wages, hours and working conditions should be made with me or some
other duly authorized representative of their chosen union. We await
your further word as to when such discussion can be had.
The Respondent did not reply to this letter.
On July 16, 1918, a hearing was held in the State District Court in the injunc-
tion preceeding. At that hearing, counsel for the Union made the following
offer :
By Mr. WELLS :
In connection with that, I would like to make this offer on the record at
this time, that if the Company will reinstate those members of the Union
who have signed authorization cards, and will agree to an immediate elec-
tion, the defendants, including the Union, will abandon their strike and will
go back to work and will agree to an immediate election.
This-statement was answered as follows by the Respondent's counsel:
Mr. RoMicx. We wish to answer that, Your Honor, for the purpose of the
record by saying that we do not have any confidence in the good faith of
these defendants. The time to bargain, and to bargain according to the
processes fixed by law, was prior to appealing to this Court to muzzle this
dangerous and vicious man " that caused a strike here.
Conclusions as to Refusals to Reinstate
As to Burgoou: As has been seen, Burgoon joined the strike on July 6. Valen-
tine's testimony, in substance, is that he discharged him because he did not
continue working : in other words, because he joined the strike. The Respondent
contends that Burgoon was a supervisor. Burgoon was the assistant auditor;
like Traffic Manager and Claim Agent Horace Thames and Auditor Valentine,
and unlike the rest of the clerical employees, he was on the monthly rather than
hourly payroll. Burgoon, however, had no supervisory authority. Thus, Valen-
tine testified that he had no authority to hire, discharge, or make recommenda-
" Presumably referring to Dixon.
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions in such regard. He had no responsible direction over other employees.
It is consequently found that Burgoon was not a supervisor, and that he was
an employee within the meaning of the Act. As such the Respondent could not
lawfully discharge or refuse to reinstate him for participating in the strike.
By doing so it discriminated against him. This would be so even if Valentine
had been under the mistaken apprehension that Burgoon had voluntarily quit
his employment. Since Burgoon was in fact on strike, the Respondent was under
an affirmative obligation not to discriminate against him, and when it refused
him reinstatement because of his failure to work during the strike, it assumed
the risk that it had divined correctly the reasons for his cessation of employment.
Ilonae Beneficial Life Insurance Co. v. N. L. R. B., 159 F. 2d 280 (C. A. 4) ; cert.
den. 332 U. S. 758.12 It is therefore found that Burgoon was discharged and re-
fused reinstatement by the Respondent because of his participation in the strike.
Hartzo, Simmons, and Teague: The defense offered for the failure to reinstate
Hartzo and Simmons is that there was insufficient work. As has been seen,
however, the undenied testimony of Hartzo is that there was a large backload of
claims for her to do, in addition to her usual duties as secretary to Valentine and
Superintendent Cates. There was billing work which Simmons could have
done which a new employee, Hendrix, was assigned to on that very morning.
It is quite clear from the findings which have been made heretofore, that Hartzo
and Simmons were informed, in effect, that the most that they could expect was
to be considered for positions as new employees at some time in the future. It
is consequently found that Hartzo and Simmons were discriminatorily denied
reinstatement to available positions. Valentine's letter of July 10, 1948, to Sim-
mons and Hartzo contained no offer of reinstatement to their positions, nor
even a definite offerof any kind of work. Their failure to respond to it personally
did not constitute a refusal by them of reinstatement.
With respect to Teague, no contention is made that no work was available,
but that in fact she was reinstated. This contention has been found not to be
sustained. On the basis of the findings heretofore made, it is found that Teague
was also discriminatorily denied reinstatement to her available position.
The testimony of Valentine and Horace Thames is to the effect that turn-
over in the Respondent's clerical staff is very high, that there have been vacan-
cies since July 1948 which the strikers could fill, and that at the time of hear-
ing the Respondent needed about three more persons on its. clerical staff. No
positions, however, have ever been offered by the Respondent to any of the
employees denied reinstatement on July 8.
B. The discharges of Chilton and Cosby
Lorraine Chilton was discharged on June 23, 1948. Chilton was the most
prominent of the employees interested in the Union. It was she who contacted
the Union originally, distributed application cards among the office staff, and
arranged for the initial union meeting on June 21. As has been seen,, on June
19 Traffic Manager and Claim Agent Horace Thames had told Alfred Tillery,
after Tillery had disclaimed affiliation with the Union, that Chilton and Cosby
were going to be discharged before the Union made any demands upon the
Respondent.
12 The Court there said : "The company contends that the validity of the discharge
should be determined in the light of the knowledge which it had on October 13 ; and that
if it did not then know that the strike was on , it cannot now be compelled to reinstate
the strikers . We do not agree with this view . . . . The company 's ignorance of the
strike did not deprive the strikers of their rights under the statute."
HOUSTON AND NORTH TEXAS( MOTOR FREIGHT LINES, INC. 1483
Chilton, an interline clerk, was an efficient employee . It is clear from the
testimony , and it is not disputed that her work , which required a higher degree
of accuracy , was good, and that the Respondent had no complaint in that
respect.
On June 23 , 1948, without any prior warning, notice or explanation , Chilton
was discharged . Valentine simply called her into the office, handed her two
checks, one for the current week's salary , the other for 1 week 's notice, and
said, "We won ' t need you any more." He offered no explanation and Chilton,
apparently stunned, did not ask for one. She took her checks and left the office
without more being said.
Under date of June 25 , 1948, Valentine thereafter sent Chilton the following
letter :
Regarding our conversation this morning. [sic] No doubt you were sur-
prised and hurt, which would account for your leaving so quickly.
In order that you might understand what happened , this letter is to
explain.
As you no doubt know, we have dropped three persons from the general
office pay roll in the past month and the management felt we should eliminate
one clerk from the local office and as you were the junior clerk, you were
the victim. This was unfortunate, but could not be otherwise. However,
if we can in any way help you to locate , please advise us.
There is no other evidence to the effect that the Respondent eliminated three
positions in the general office. Valentine 's testimony discloses that two persons,
one an operator , the other a claim clerk , quit during June and had not been re-
placed. Inability to secure replacements seems, however , to have been the reason
for that, not desire for reduction. When the operator left, part of her duties
were assigned to Hartzo . When the claim clerk left , being unable to secure
a replacement for him, the Respondent also gave Hartzo part of his duties.
As is more fully described hereinafter , during the same period the Respondent
was adding three additional employees to the office pay roll.
R. A. Cosby was discharged on July 3, 1948, 10 days after Chilton. Unlike
Chilton, however , Cosby was assertedly discharged for incompetence. Cosby was
a bill clerk . There is credible evidence that Cosby was a slow worker and that
there had been complaints from Superintendent of Operations Cates, extending
over several months, to the effect that the trucks were delayed in leaving
the terminal because of Cosby ' s slowness in preparing and in getting the bills to
the drivers . Superintendent Cates credibly testified to the effect that he talked
to Cosby about getting the bills to the drivers more promptly and that Cosby
stated that he was "doing the best he could." Cates also complained to Alfred
Tillery, the rate clerk , and to Thames . Tillery relayed these statements to
Thames with the observation that Cosby was slow. On June 19 Thames asked
Tillery to get a replacement for Cosby. Hendrix, the replacement, came to work
on July 6, the morning of the strike , but was sent home because of the strike.
He returned on July 8, began to work and is still employed by the Respondent13
"There are also further assertions , substantiated by Tillery 's testimony , to the effect
that Cosby made errors . In addition , another ground urged by the Respondent for Cosby's
discharge is that he came to work early and thus increased his hours and pay. It is
clear from the testimony , particularly of Cates, that billing errors are a common occur-
rence. As to the second ground , the matter was called to Thames' attention who said in
substance that it did not matter . In any event , neither complaint was ever brought to
Cosby 's attention.
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is apparent, therefore, that the Respondent was not altogether satisfied with
the work of Cosby. If there were no more to the case it would have to be found
that his discharge was probably for that reason. Other factors, however, indicate
that Cosby's discharge was motivated by the Respondent's desire to eliminate
union adherents within the appropriate unit.
Thus, though the Respondent urges Cosby's incompetence, slowness , and error,
as ground for his discharge, when Chilton was let go, part of her work, which
required a high degree of accuracy, was assigned to Cosby and the remainder to
Cashier Teague. This seeming inconsistency is only partially explained by the
fact that Cosby's billing work did not begin in volume until about 2 p. in., leaving
him with spare time in the morning to devote to Chilton's job. While the ex-
planation accounts for Cosby's time, it ignores his inaccuracy. Nor does it ex-
plain why the Respondent, assertedly interested only in efficiency, should dis-
charge an admittedly efficient employee like Chilton, and transfer her work
to an inefficient one like Cosby. While the assertion is made that Chilton was not
qualified to do Cosby's work, I find this contention unsustained. Chilton's work
made her fully capable of doing Cosby's. If Chilton was unqualified to perform
Cosby's work, it is manifest that Cosby was even more unqualified to perform
Chilton's.
The only valid conclusion that can be drawn is that the Respondent was not
motivated by considerations of efficiency in discharging Chilton, and that,
whether satisfied with Cosby's work or not, it was willing to sacrifice efficiency
to get rid of Chilton. That it had no plans when it discharged Chilton for
permanently solving the problem left by her leaving is evident from the fact
that her work was given to Cosby, whom the Respondent was already planning
to discharge. Likewise, despite Cosby's asserted incompetence and inaccuracy,
the Respondent displayed little hesitation in entrusting him with Chilton's work
with its exacting accuracy requirements.
As is found hereinafter, the Respondent at this time was engaged in elimi-
nating union adherents from the appropriate unit and in otherwise diluting
the Union's strength within the unit.14 These facts, when considered in con-
nection with Chilton's case, lead to but one reasonable conclusion : that she
was discharged because of her union activity. When considered in connection
with Cosby's case, they impel a finding that he also was discriminated against.
Admittedly the case for Cosby is weaker than Chilton's. Tillery summed up
Cosby as a "fair bill clerk. He wasn't good, and I have seen worse." He testified
that while he would not have recommended Cosby, his work was not so unsat-
isfactory as to merit his discharge.15 In vacno and in a context devoid of other
evidence of unfair labor practices, Cosby's union membership would not have
overcome the evidence of the existence of work habits which, while not impelling
Tillery to discharge him, could reasonably have been compelling to Thames
and Valentine. The Respondent's use of Cosby in Chilton's job, however, mili-
tates against the Conclusion that it was seriously dissatisfied with his perform-
14 There is little reason to doubt that the Respondent was aware of which were the
union adherents in the office and which were not. In so small a group the information
could be expected to be known within a short time. Chilton's activity, at least in part,
took place openly in the office. Moreover, the Respondent did not hesitate to ask questions.
Thus, Horace Thames interrogated Tillery about union activity ; and asked his son
whether he had joined . On June 25 Thames knew of the employees ' decision to strike for
recognition if necessary . The Respondent thus seems to have had reliable sources of
information as to the Union's activity.
15 In answer to questions from Respondent ' s counsel ; the Respondent ' s position being
that Tillery was a supervisor.
HOUSTONANll NORTI'H TEXAS MOTOR FREIGHT LINES, rc. 1485
ante. In addition, his discharge cannot be divorced from the other events taking
place at the same time and which indicate that the Respondent was intent on
destroying the Union's majority. Under such circumstances the conclusion
that the Respondent was motivated by antiunion considerations in discharging
Cosby is much more persuasive than the conclusion that it discharged him for
reasons of efficiency.
It is found that Chilton and Cosby were discharged because of their union
membership and activity.
C. The refusal to bargain
1. The appropriate unit
The General Counsel and the Union contend, the Respondent does not deny,
and it is found, that all office employees of the Respondent employed at the
Dallas, Texas, office excluding city pickup and delivery drivers, dockmen and
helpers, warehousemen, line drivers, and supervisory employees, constitute a
unit appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
The Respondent contended that Alfred Tillery and Roy Burgoon were super-
visors. It has previously been found that Burgoon possessed no supervisory
status. It is likewise found that Tillery had no authority to hire, discharge,
effectively recommend any changes in the status of employees, or responsibly to
direct them. It is consequently found that Tillery was not a supervisor, and
that both lie and Burgoon should be included in the appropriate unit.
2. The Union's majority
On June 15, 1948, there were 12 persons in the office unit. Between June 16
and June 21, 3 new office employees, Bob Young, Thomas Canada, and Tom Joe
Ivy were hired to straighten out files disarranged when the Respondent had
moved its office in August 1947. Young was hired on June 16; Canada and Ivy
on June 21. Canada and Ivy worked 5 or 6 weeks, Young 2 to 3 months, and all
then quit.16 The Union contends that they were temporary employees and should
not be included in the unit.
In view of the other events which have been described, it seems quite apparent
that at least Canada and Ivy were hired as insurance against the Union's attain-
ing a majority. It is scarcely probable coincidence that during the very period
that the Respondent had assertedly reduced its staff by three persons for reasons
of economy and was contemplating the discharge of another, Chilton, for the
same reason, that it should be hiring three new employees merely to straighten
out its files; and this 11 months after the files had become disarranged.
Nevertheless, Young, Canada, and Ivy were performing work in the appro-
priate unit. According to Valentine, his intention was to transfer them to
other work in the office, if they developed. Consequently, I would include them
within the appropriate unit. Valentine's intention, however, further refutes
the assertion that the Respondent was effecting personnel reductions or that
it had or was contemplating any program for retrenchment.
Also to be included in the unit is a part-time employee, Cramer, who worked
several hours a day billing. Although Cramer worked full time for another
employer, coming to work for the Respondent about 5 p. in., he performed work
16 The finding is based on Valentine's testimony. However, Ivy's name, for what reason
is not disclosed , does not appear on the July 7 , 1948, payroll in evidence.
1486 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the appropriate unit, and had worked regularly in 'that fashion for the
Respondent for several years.
Including. Tillery, Burgoon, Young, Canada, Ivy, Cramer, and Chilton, there
were 15 persons in the appropriate unit the week ending June 23, 1948. Since
Chilton, discriminatorily discharged, is to be considered as an employee, there
were the same number on the June 30, 1948, payroll. For July 7, including
Cosby who had been discriminatorily discharged on July 3, and adding Ivy,
whose name for some undisclosed reason does not appear thereon, the payroll
is the same. -
By June 22, 1948, 8 of these 15 had designated the Union as their collective
bargaining representative. The Union therefore represented a majority which
it continued, in law, to retain. It is found that on and after June 22, 1948, the
Union was the exclusive representative of the employees in the appropriate unit,
within the meaning of Section 9 (a) of the Act.
3. The refusal to bargain
On July 1, 1948, Dixon demanded recognition. On July 6 his request was
refused. Since the Union represented a majority it was entitled to recognition.
A long line of Board decisions, however, holds legitimate a refusal by an em-
ployer to recognize a union claiming a recognition if the refusal is based on a
good faith doubt as to whether the Union in fact represents a majority. Such a
doubt, however, must be genuine.. As the Board said in the case of E. A. Labora-
tories, Inc., 80 NLRB 625:
a refusal to bargain based on the respondent's good faith doubt as
to the Union's majority would constitute a complete defense. A good faith
doubt, however, must be based on something more than a mere desire to put
a union to a contest of strength in the hope that it may somehow lose .. .
[collective bargaining]. Elections are held to settle questions concerning rep-
resentation-to resolve real doubts, not feigned ones.
The whole course of the Respondent's conduct here seems to establish that the
Respondent had little genuine concern as to whether the Union represented its
employees within the meaning of the statute. Rather it appears to me that the
Respondent's only concern was that it might be required to recognize the Union
and that it affirmatively sought to forestall that possibility.
Originally Valentine did not seem to regard seriously the Union's chances of
success in organizing the office. When Burgoon showed him the blank applica-
tion card in mid-June, as he said, he "just kind of laughed it off . . ." He
"didn't think there was any chance of them organizing the office." By June 19,'
however, the situation had apparently become more serious in the Respondent's
view. On that date Thames questioned Tillery about the union activity, said
that he understood that all but 2 of the employees had joined the Union. Two
days later, on June 21, Canada and Ivy were added to the payroll and the unit.
On the same evening the Union held a meeting, arranged by Chilton, word of
which had been passed around the office on June 19. By the following day, June
22, the Union had secured the authorizations of 8 employees even in the now
expanded unit of 15. On the same day Thames told Tillery, in effect, that affilia-
tion with the Union would retard Tillery's advancement, an assertion calculated
to encourage. Tillery's abandonment of the Union. The loss of Tillery would
have converted the Union to a minority position.
On the following day, June 23, Chilton was discharged without explanation.
It was not until several days later that Valentine saw fit to advance her a
HOUSTON AND NORTH TEXAS MOTOR FREiIGHT LINTES, INC. 1487
reason. The Union was now a minority. By now the appropriate unit, which
had contained 12 employees on June 15, of whom 8 had designated the Union by
June 22, had been increased to 15 and 3 new nonmembers of the Union had been
added.
The discharge of Chilton reduced the unit to 14, of whom the Union repre-
sented only 7. If Thames had been able to secure Tillery's disaffiliation the
Union's position would have been further reduced. The Respondent was un-
doubtedly aware of the situation. On June 25, Thames had another conversa-
tion with Tillery in which he asked Tillery what could be done to stop the union
activity and indicated that he knew of the employees' decision of June 21 to
strike if recognition was not accorded voluntarily. He received no help from
Tillery, and on July 1, Dixon presented his demand for recognition. On July 3,
Cosby was discharged, later replaced by Hendrix. There were now 6 union mem-
bers left in a unit of 14 employees. Thus in a period of 21/2 weeks from June
15 to July 3, without a single union member having abandoned his affiliation,
what would have been a union majority of 8 out of a unit of 12, has been trans-
formed into a minority of 6 out of 14. Such a result surpasses the bounds of
possible coincidence.
On July 6, therefore, the Respondent told Dixon that it would not recognize
the Union. Bradley could thus safely tell Valentine, as he did, that he would
not "do business" with Dixon until the Union demonstrated a majority through
formal Board procedures. Assured though its position appeared, however, the
Respondent was unwilling to risk even a consent election. Thus Valentine refused
such a procedure when Dixon suggested it. It is unnecessary to decide whether
Dixon offered to submit the designation cards of the employees. The sugges-
tion for consent election was a reasonable offer for solution of the question of
majority, if the Respondent had been genuinely troubled by it. No other ques-
tions were raised by the Respondent at that time, such as unit problems, requiring
decision by the Board. As the Board said in the case of Rockwood Stove Works,
63 NLRB 1297, 1325:
It is also clearly established in decisions of the Board and the courts too
numerous to cite, that where a labor organization represents a majority of
employees in an appropriate unit, and advises the employer of that fact and
makes a reasonable offer of proof of the said majority the employer, unless
there are extenuating circumstances such as claims by a rival union, may not
lawfully withhold recognition and refuse to bargain on the grounds that the
said labor organization has not been formally certified with the Board.
In any event the Respondent's refusal to agree to settlement of the question by
consent election is further indication that its asserted doubts as to majority status
were not bona fide. Admittedly the Respondent made no request for the presen-
tation of proof of majority representation. When the strike occurred it secured
an injunction prohibiting the picketing. Further indicative of the Respondent's
bad faith is its refusal to reinstate strikers when they abandoned the strike fol-
lowing the issuance of the injunction. When on July 16 the union attorney
offered an immediate election if the Respondent would, as it was legally required
to do, reinstate the employees, the offer was rejected with the anomalous asser-
tion that the time to bargain was prior to the strike, when it was the Respond-
ent's refusal to bargain which had caused the strike.
In the case of Joy Silk Mills, Inc., 85 NLRB 1263, the Board said, and its
application here appears unavoidable:
I
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have previously held that an employer may in good faith insist on a
Board election as proof of the Union's majority but that it "unlawfully refuses
to bargain if its insistence on such an election is motivated, not by any bona
fide doubt as to the Union's majority, but rather by a rejection of the collec-
five bargaining principle or by a desire to gain time within which to under-
mine the union." [Citing Aircraft Hosiery Company, 78 NLRB 333.] In
cases of this type the question of whether an employer is acting in good or bad
faith at the time of the refusal is, of course, one which of necessity must be
determined in the light of all relevant facts in the case, including any unlaw-
ful conduct of the employer, the sequence of events, and the time lapse
between the refusal and the unlawful conduct.
It is found that the Respondent refused to bargain with the Union on July 1, 6,
7, and 16, 1948, and that such refusals were not motivated by bona tide doubts as
to the Union's representative status, but were calculated to avoid dealing with the
Union and to undermine its position, and that the Respondent's whole course of
conduct constituted a rejection of the collective bargaining principle with respect
to the employees here involved.
General Conclusions
It is found that the Respondent discharged Lorraine Chilton and R. A. Cosby
and refused to reinstate Wanda Hartzo, Mildred Simmons, Charlotte Teague, and
Roy M. Burgoon because of their union and concerted activities ; and to evade
bargaining with the Union ; thereby discriminating in the hire and tenure of
employment of those employees and discouraging membership in a labor organ-
ization; that it refused to bargain with the Union; and that by these acts, and
by Horace Thames' statements in his three conversations with Alfred Tillery, the
Respondent interfered with, restrained, and coerced its employees in the exer-
cise of rights guaranteed in Section 7 of the Act.
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 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 commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices
it will be recommended that it cease and desist therefrom and take certain
affirmative action which will effectuate the policies of the Act.
It has been found that the Respondent discriminated in the hire and tenure
of employment of Lorraine Chilton, R. A. Cosby, Wanda Hartzo, Mildred Sim-
mons, Charlotte Teague, and Roy M. Burgoon. It will be recommended that
the Respondent offer each of the above-named individuals immediate and full
reinstatement to his former, or a substantially equivalent position (Chase
National Bank, 65 NLRB 827) without prejudice to his seniority or other
rights and privileges and make each of them whole for any loss of pay he or
she may have suffered by reason of the Respondent's discrimination by payment
of a sum of money equal to that which would have been earned as wages from the
date of discharge or refusal to reinstate to the date of the offer of reinstate-
8
HOUSTON AND NORTH TEXASI MOTOR FREIGHT LINES, INC. 1489
ment, less his net earnings during that period. In the case of Chilton from
June 23, 1948; Cosby from July 3, 1948; and in the case of Hartzo, Simmons,
Teague, and Burgoon, from July 8, 1948.
It having been found that the Respondent has refused to bargain collectively
with the Union, the statutory representative in the appropriate unit, it will be
recommended that the Respondent bargain collectively with the Union and em-
body any understanding reached in a signed agreement.
It will be further recommended that the Respondent cease and desist from
in any manner interfering with, restraining, or coercing its employees in
the right of self-organization.
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. Dallas General Drivers, Warehousemen and Helpers, Local Union 745, A. I'.
of L., is a labor organization within the meaning of Section 2 (5) of the Act.
2. All office and clerical employees of the Respondent employed at its Dallas,
Texas, office, exclusive of city pickup and delivery drivers, dockmen and helpers,
warehousemen, line drivers, and supervisory employees, constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
3. On June 22, 1948, Dallas General Drivers, Warehousemen and Helpers,
Local Union 745, A. F. of L., was, and at-all times since has been, the exclusive
representative of all employees in the appropriate unit for the purposes of col-
lective bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing to bargaining collectively with the Union as exclusive repre-
sentative of the employees in the appropriate unit, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of Lor-
raine Chilton, R. A. Cosby, Wanda Hartzo, Mildred Simmons, Charlotte Teague
and Roy M. Burgoon, thereby discouraging membership in the Union, the Re-
spondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (3) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise
of the 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.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that Houston and North Texas Motor Freight Lines, Inc., Dallas,
Texas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from the following :
(a) Refusing to bargain collectively with Dallas General Drivers, Warehouse-
men and Helpers, Local Union 745, A. F. of L., as the exclusive representative
of all its employees in the appropriate unit with respect to rates of pay, wages,
hours of work, and other conditions of employment ; .
1490 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Discouraging membership in Dallas General Drivers, Warehousemen and
Helpers, Local Union 745 , A. F. of L., or any other labor organization of its
employees , by discriminatorily discharging or refusing to reinstate any of its
employees , or by discriminating in regard to their hire or tenure of employment
or any term or condition of employment ;
(c) In any other manner interfering with, restraining , or coercing its employ-
ees in the exercise of their right of self-organization , to form, join or assist Dal-
las General Drivers, Warehousemen and Helpers , Local Union 745, A. F. of L.,
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, or to refrain from any or
all of such activities except to the extent that such right may be affected by
agreement requiring membership in a labor organization as a condition of em-
ployment , as authorized in Section 8 (a) (3) of the Act, as guaranteed in Sec-
tion 7 thereof.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act :
(a) Bargain collectively with Dallas General Drivers, Warehousemen and
Helpers, Local Union 745, A. F. of L., as the exclusive representative of its
employees in the appropriate unit, and embody any understanding reached in a
signed agreement;
(b) Offer to Lorraine Chilton, R. A . Cosby, Wanda Hartzo, Mildred Simmons,
Charlotte Teague, and Roy M. Burgoon, immediate and full reinstatement to their
former or substantially equivalent positions , without prejudice to their seniority
or other rights and privileges , and make each of them whole in the manner set
forth in Section V, above, entitled "The remedy" ;
(c) Post at its plant and office in Dallas, Texas , copies of the notice attached
hereto and marked Appendix A. Copies of said notice, to be furnished by the
Regional Director for the Sixteenth Region, after having been duly signed by
authorized representatives of the Respondent , shall be posted by the Respondent
immediately upon receipt thereof and maintained by it for sixty ( 60) consecutive
days thereafter in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered , defaced, or covered by any
other material ;
(d) Notify the Regional Director for the Sixteenth Region in writing, within
twenty (20) days from the date of receipt of this Intermediate Report and Rec-
ommended Order, 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 and Recommended Order the Respondent
notifies said Regional Director in writing that it will comply with the foregoing
recommendations , the National Labor Relations Board issue an order requiring
the Respondent to take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, 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, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report and Recommended Order 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 ;
HOUSTON AND NORTH TEXAS MOTOR FREIGHT LINES, INC. 1491
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. Im-
mediately 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 and briefs shall designate by precise citation the por-
tions of the record relied upon and shall 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 per-
mission to argue orally before the Board, request therefor must be made in
writing to the Board within ten (10) days from the date of the 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 31st day of October 1949.
CHARLES W. SCHNEIDER,
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
organizations , to join or assist DALLAS GENERAL DRIVERS, WAREHOUSEMEN
AND HELPERS , LOCAL UNION 745, A. F. of L ., 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 employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
WE WILL BARGAIN collectively upon request with the above -named union as
the exclusive representative of all employees in the bargaining unit de-
scribed herein with respect to rates of pay, hours of employment , or other
conditions of employment , and if an understanding is reached , embody such
understanding in a signed agreement . The bargaining unit is:
All office and clerical employees employed at the Dallas, Texas, office,
exclusive of city pickup and delivery drivers, dockmen and helpers,
warehousemen , line drivers , and supervisory employees.
The employees to be offered reinstatement and made whole are :
Lorraine Chilton Mildred Simmons
R. A. Cosby Charlotte Teague
Wanda Hartzo Roy M. Burgoon
882191-51-95
1492 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 activity on behalf of any such labor
organization.
HOUSTON AND NORTH TEXAS MOTOR FREIGHT LINES, INC.,
Employer.
By --------------------------------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
S