Keystone Freight Lines

National Labor Relations Board - Board Decisions

Jun 29, 1940

24 N.L.R.B. 1153 (N.L.R.B. 1940)

In the Matter of. KEYSTONE FREIGHT LINES and INTERNATIONAL
BROTHERHOOD .OF :TEAMSTERS; CHAUFFEURS, STABLEMEN, AND HEI P-
Figs, , LocaL 523
Case ' No. 6-i491.-Decided June 29, 1940,
Common Carrier. of ° Freight-Interference, . Restrdint, 'and Coercion-Com=
pany-Dominated, ' Union: domination . of and 'interference with administration
and lending support ,thereto ; recognition of. and granting closed-shop contract to
pi'ior 'to first membership meeting; organization activity conducted and meetings
held ,.on company property .; collection of dues and issuance of buttons by dock
foreman ; . hostility to "outside" union and preference for "inside" union expressed
by,general manager ; barren history of collective bargaining ; failure to act on
grievances ; failure to , remand ' improvements in working conditions for two
years after its formation' until compelled to by dissident members subsequently
discharged .; ordered disestablished-Diicrilnfnation : discharges ; two employees
whose . opposition to contract proposed by-officer of company -dominated union
compelled employer to grant wage increases discharged immediately following
expression of opposition and shortly after - joining "outside union" ; alleged
reasons for discharges not sustained by record ; Company admittedly knew
facts upon whose 'discharges were allegedly based in both ' cases for several
months prior to discharges-Rei'nstatem'ent Ordered-Back Pay: as to one
employee from date of discharge to date of offer of reinstatement : as to second
employee from date of discharge to. date . of Intermediate Report and thereafter
from date of Order to date of offer of reinstatement; (Leiserson dissenting)
employee having obtained employment similar to that which he performed for
company- and not having indicated desire to'be reinstated, would limit remedy
to award of back, pay from date of discharge to other employment obtained.
"Mi.' L. N. D. Wells, Jr., for the Board.
Mueller & Mueller, by Mr.. Karl H. Mueller and Mr. Harold E.
Mueller, of Fort Worth, Tex., for' the respondent.
'Hudson. c6 Hudson, by Mr. Ted H. Haugh, of Tulsa, Okla., for the
Keystone' Independent. '
Mr. Jess W. Caldvell,_of Tulsa, Okla., for the Teamsters.
Miss Marg Metlay, of counsel to the Board:'
DECISION
AND
ORDER
STATEMENT OF THE CASE
'Upon charges duly filed by International Brotherhood of Team-
sters, Chauffeurs, Stablemen, and Helpers, Local No. 523, affiliated
24 N.:. L. R. B., No. 128.
1153
1154 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
with the American Federation of Labor, herein called the Teamsters,
the National Labor Relations Board, herein called the Board, by the
Regional Director for the Sixteenth Region (Fort Worth, Texas),
issued' its. complaint dated September -13, 1939, against' .Keystone
Freight. Line,. Tulsa, Oklahoma, herein called the- respondent, alleg-
ing that the respondent had engaged-in and was engaging in unfair
labor practices affecting commerce, within the meaning of. Section 8
(1),,(2), and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act.
With respect to the unfair labor. practices the complaint alleged
.in substance : (1) that on or about March 23, 1938, the respondent
purchased the business enterprise known as the Adams Union Truck'
Terminal,' herein called the Adams Company; (2) that prior" to
March 23, 1938, the Adams Company encouraged, fostered, domi-'
nated, and interfered, with the formation and administration of `a
labor organization known as the Adams Union Truck Terminal Road
Drivers, Pickup Drivers, Dock Workers, and Garagemen's Union,
herein called the Adams Independent, and contributed finaicial aiid
other support thereto; (3) that subsequent to March" 23, 1938, the
respondent continued in existence the Adams Independent under
the name of the Keystone Road Drivers, Pickup Drivers, Dock
Workers, and Garagemen's Union, herein called the Keystone Inde-
pendent, and under the management of the officers of the Adams
Independent; (4) that the respondent from about March 23,'193S.
down to and including the date of the filing of the complaint, en
couraged, fostered, dominated, and interfered with the administra-
tion of the Keystone Independent, and contributed financial and.
other support thereto, in that respondent permitted meetings of the
Keystone Independent to be held regularly on its premises,. i ermit-
ted solicitation of membership and collection of dues to be'inade by
the Keystone Independent's officers during working hours and on its
premises, and, by its dock foreman, E. A. Keffer, collected dues
from and distributed union buttons to various of its employees,; (5)
that the respondent, on or about` March 27, 1939, inquired ,of Lee
Summerlin as to what persons were affiliated with the Teamsters,
on or about March 1, 1939, advised Lee Summerlin and others to
refrain from affiliating with the Teamsters and to remain affiliated
with the Keystone Independent, and on or about April 13 advised
Lee Summerlin, who was then a striking employee, to abandon the
strike and to cease affiliation with the Teamsters; (6) that the re-
spondent discriminatorily discharged and refused to reinstate Har-
vey Rolen, and . Roy E. Dowd because they joined and assisted ^ tlu3
Teamsters and engaged in concerted activities- with other employees
of the Tespondent for the purpose of collective bargaining and other
KEYSTONE FREIGHT' LINES '" " - , 11'55
mutual aid and protection; and '(7) :that. the respondent by the- fore-
, going. and. ; by other acts, interfered with, : restrained; and coerced
its`employeesin the exercise of the rights guaranteed in Section-7.
of the Act:: Copies of the complaint, accompanied by notice of ,hear-
were ; duly served upon the respondent, the Teamsters,. and the
Keystone- Independent.
On October 2, 1939, the respondent filed its answer, admitting
certain-allegations as :to the nature of its business, and" denying that
- it had engaged in'or was engaging in the unfair labor practices as
alleged. The- answer, further alleged. that the discharges of Harvey
Rolen' and Roy E. Dowd were made for good and sufficient cause.,
- On October '10, 1939, the respondent filed a motion with the Re=
gional -Director to strike and dismiss allegations in the complaint
which set forth the conduct and activities of the Adams Company,
for the reason that there, is no identity of enterprise between the' busi=
ness operated by the Adams Company prior to March 23,1938, and the
business'.'operated by the respondent subsequent to that date,. so as
to make the alleged unlawful acts and conduct of the 'Adams 'Com-
pany legally, imputable to the respondent. On the same date the re-
spondent also filed with the Regional Director 'a motion for further
and better particulars. ' . '
Pursuant to notice and order extending the date -of hearing, a
hearing was held. in Tulsa, Oklahoma, on; October 26; 27, 28, 30, and
31,'1939, before John T. Lindsay, the Trial Examiner duly desig-
nated by the .Board. The Board and the respondent, represented by
counsel, and the Teamsters, represented by its business agent, par-
ticipated in the hearing. At the commencement of the hearing the
Trial Examiner denied the respondent's' motion to strike and dismiss
which had previously. been filed with the Regional, Director. The
respondent's' contention in support of its motion to strike and dis-
miss is based upon a: misapprehension of the purpose of the inclusion
in the complaint 'of allegations setting forth the acts and conduct of
the Adams Company. Said, acts and conduct are a proper subject
for inquiry - at the hearing not in -order to impute -such conduct to
the respondent,. but as a background for the' alleged unlawful acts of
the respondent.) The respondent's contention that there'is no iden-
tity of enterprise between, the business operated by the .Adam s' Com
pany prior. to March 23; 1938, and the business operated by the
respondent subsequent to March 23, 1938, is not supported by the
record. The ruling of the Trial 'Examiner is hereby affirmed.
The Trial Examiner also denied the respondent's motion for fur-
ther and better particulars which had-previously been filed with the
1 See Matter of Corning G lass Works; Macbeth-Evans Division and Federation of Flat
Glass Workers of America, 15 N. L. B. B. 598.
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional 'Director. In :denying this motion, the Trial : Examiner
advised the respondent- that if any matters were introduced during
the_ hearing 'which in any way took the respondent . by surprise the
respondent would be ' afforded a reasonable length of time at the
conclusion of the Board's case to prepare to meet any such evidence.
The respondent's counsel requested and was granted 2' hours at the
close 'of 'the Board's case to prepare its defense.
After- the Trial' Examiner had` ruled on the foregoing . motions
the:-Keystone Independent filed with the Trial Examiner a motion
and petition to intervene.. The:-Trial Examiner granted this mo-
tion, limiting the intervention- to that phase of the case relating to
the charge of domination of the Keystone Independent. In addi-
tion to the general motion to intervene, separate'. petitions to inter-
vene for' each member ,of the Keystone, Independent were separately
filed on behalf of said members. The Trial - Examiner: denied the
separate petitions to intervene. Thereafter the. Keystone Independ-
ent was represented by counsel and participated in the hearing>w.ithin
the limitation noted. Full opportunity to be heard, to examine and
cross-examine -witnesses, and. to introduce evidence bearing on the
issues was afforded all parties.
At the close of the Board's case counsel for the respondent moved
to strike and dismiss all testimony concerning matters that occurred
prior' to March 23, 1938, in connection with the operations. of the
business of the Adams . Company, as incompetent, irrelevant, im-
material, and . not binding on the respondent, and to dismiss the
complaint for failure of proof. Counsel for Keystone Independent
joined in these motions.. - The Trial Examiner denied both motions.
At the close of the respondent's case and again at the conclusion
of the hearing, the respondent renewed its motions made at: the, close
of the Board's case. The Keystone Independent joined in that re-
newal. The Trial Examiner reserved his rulings. on these motions
and denied them in his Intermediate Report. During the course of
the hearing the Trial Examiner ruled on other motions and on-objec-
tions' to the admission Of - evidence. The Board- has reviewed the
rulings of the Trial Examiner and-finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
At the conclusion of the hearing counsel for the Board moved to
amend the complaint to conform to the proof, which motion, limited to
the correction of spelling of names and typographical errors, was
granted by the Trial Examiner. The ruling is hereby affirmed.
On' February 10; 1940, the Trial Examiner filed - his Intermediate
Report. He found that the respondent had. engaged in and was en-
gaging in unfair labor practices within the meaning of Sections 8 (1),
(2), and (3) and 2 (6) and (7) of the Act, and recommended that
KEYSTONE FREIGHT. LINES 1157
the'respondent cease and desist from the. unfair labor practices found,
reinstate with back 'pay Roy E. Dowd, and post notices that it will
disestablish and withdraw recognition from the Keystone Independent
and cease giving'effect to its contract'with the Keystone Independent.
He recommended 'further, that the complaint be dismissed. in' so far
as'• it alle'ge' that''the: respondeiit disci'im i atoril} . discharged 'Harvey
Rolen.
On March 7 and 11, 1940, pursuant to an extension of time granted
by the Board, the respondent and the Keystone Independent,. respec-
tively, filed exceptions to the 'Intermediate Report. The Teamsters
did not file exceptions to the Intermediate Report. On March 16,
1940,' the respondent filed a brief with the Board in support of its
exceptions. No requests for oral argument were made.
The Board has reviewed the exceptions to the Intermediate Report,
and has considered the respondent's brief in support of its exceptions
and, in so far as said exceptions,are inconsistent with the findings,
conclusions,' and order;.set forth-below, finds them to be-:Without merit.
Upon the entire record in the case, the Board' makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, all Oklahoma corporation duly chartered on Janu-
a.ry 27, 1938, as a common carrier of freight, is engaged in the busi-
ness of . transporting by truck freight and' commodities over regular
routes through and in the States of Oklahoma, Arkansas; Texas, and
Kansas. Its principal office and place of business is in' Tulsa, Okla-
Noma, and it employs approximately 67 employees.
From January 27 to about March 23, 1938, the respondent operated
as a small common carrier of freight in the State of Oklahoma, em-
ploying. only four. employees, and operating only three pieces of
equipment.' On or about February 28, 1938, the respondent pur-
chased from the Adams Transfer and Storage Company 2 certain of
its motor. trucks, tractors and. trailers, office furniture, warehouse and
shop equipment, and certain leases and routes covered by certificates
of convenience and necessity issued by the State of Oklahoma, all of
which, with the exception of two routes, comprised the operations of
the Adams Company in its entire southwest division. ' On March 23,
1938, the respondent began its operations of the equipment and routes'
3 The Adams Transfer and Storage Company is sometimes referred to in the record as
the Adams Union Truck Terminal . It appears from the record'and from the respondent's
brief "that ,"Adams Union Truck Terminal ," is the designation given terminal warehouses
and dock facilities maintained and operated by the Adams Transfer and Storage Company
in several cities, one of which was located in Tulsa, Oklahoma . -To avoid confusion both
the Adams Transfer and Storage Company and the Adams Union Truck Terminal are
herein called the Adams Company.
283035-42-vol. 24---74
1158 DECISIONS OF:'NATIONAL LABOR '.RELATIONS BOARD'
purchased from the Adams : Company. , Thereafter,,on July .15,,1938i
and on August 7, 1938, the respondent purchased certain certificates
of convenience and necessity covering two additional. routes; The
respondent is subject to -the terms and provisions of the Motor Carrier
Act of . 1935.3 In 1938 : ,the- respondent' .transported, approximately
45,437,804 pounds of freight; approximately 50 per cent of which was
transported in interstate commerce from and to States of the United
States other than the State of Oklahoma.4
We find that the respondent - is engaged in traffic, commerce, and
transportation among the several States and that. the employees- of
the respondent are directly engaged: in.such traffic, commerce, and
transportation. .
II. THE ORGANIZATIONS INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Stablemen,
and Helpers, Local No. 523, is a labor organization affiliated with the
American Federation.of Labor,-admitting to membership, employees
of the respondent and other freight- carriers in the vicinity of- Tulsa.
Keystone Road Drivers, Pickup Drivers, Dock Workers, and
Garagemen's Union is an independent labor organization, admitting
to membership only the employees of the respondent.
Iii. THE UNFAIR LABOR PRACTICES
A. 'Backyraumi
In August or . September of 1937. Gordon Sliryock,.a representative
of the Teamsters; went to Kansas City, Missouri, where the Adams
Company maintained its principal offices, aid attempted to negotiate
a contract .with Adams, president 'of the Adams Company, for its
employees. in. Tulsa, Oklahoma.. Adams refused to negotiate until
he had ascertained whether or not his employees wanted to be repre-
sented by the Teamsters. He Vent to Tulsa for that purpose and-
conducted ail election. Eighteen employees voted against representa-
tion by the Teamsters and two voted for such representation
Lee Summerlin, a witness called by the Board, who had been in the
employ of the Adams Company and subsequently in the employ of
the respondent, testified that in October 1937 Delmar Shutter, an
employee of the Adams Company and subsequently of the respondent,
circulated a petition on the dock of the Adams Company during
working hours concerning the organization of an independent- union.
$ 49 Stat. 543.
4'The respondent, its officers , or- Stockholders . - ate in no way connected or affiliated
with the Adams Company , and the Adams Company is in no way affiliated or connected
with the respondent 's business . The 'Adams Company continued to operate, conduct,
and maintain its business over all of its routes except those sold'to respondent.the
KEYSTONE' FREIGHT LINES 1159
Shutler denied having circulated a petition, but testified that•he.spoke
to "the boys" during October 1937, on the. dock and during working
hours, about organizing such a union.
Shutler arranged fora meeting which was held in November 1937
at the home'of E. A':'Keffei, the dock,foremaii of the Adams Company,
and attended by approximately 10 to 17 employees, for the purpose
of forming an independent union. Shutler testified that two em=
ployees of the Adams Company roomed with Keffer and were 'privi-
leged to call meetings in Keffer's home if they so desired. The record
is clear' that Keffer was not present at the meeting. Keffer, testified
that he was not informed that the meeting was to be held at his home;
that he was away at that time, that on his return after the meeting
had been held he was informed by one of the employees who resided
with him that a meeting had been held at his home,, and that he.was
not told the nature and the purpose of the meeting, nor did, he inquire
as to or know its purpose. In view of the support subsequently ac-
corded to the- Adains-'Independent by: the Adams., Company, and in
view of the finding:of the Trial Examiner who-had an opportunity
to observe the demeanor of the witnesses, we do not believe that such
a meeting was held in Keffer's home withoilt his knowledge and
consent.
Shutler arranged for the presence of an attorney, Joy Clayton,
who had prepared articles. of association which were adopted by the
employees present at'the meeting. The Adams Dock Terminal, Road
Drivers, Pickup Drivers, Dock Workers, and Garagemen's Union was
adopted as the name of the union. It was agreed that meetings were
to be held regularly on the first Sunday of each month thereafter and
that members would .pay $1 per month as membership dues. Shutler
was elected president of the Adams Independent, Charles Dozier, vice
president, Ray Beals, secretary, and Lee Summerlin, treasurer.
Shortly thereafter the Adams Company entered. into a closed-shop
contract' with. the Adams Independent.. There is nothing in the
record to show what negotiations, if any, took place in connection
with that contract. However, it is obvious from the testimony of
the officers of the Adams Independent that both the Circumstances
surrounding the execution of this contract and its terms were sufli-
ciently..nebulous to justify doubt as to the bona fide character of
any negotiations that may have been conducted. The secretary of
the Adams Independent testified that he had no recollection con-
cerning-even the existence of the contract, and Surnmerlin, the treas-
urer of the Adams Independent, knew of its existence only because,
as treasurer of the union, he had paid Clayton for drawing it, up.
Sliutler testified that he did not remember whether or not the con-
tract provided for any changes in the then existing working condi-
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions of the employees of the Adams: Company. The record reveals
that no changes in working conditions were in fact provided for by
the contract.
..The second meeting of the Adams. Independent was not called until
February 1938: Although the Adams Company imposed a reduction
in pay on its-employees. between November 1937 and February 1938,
the newly formed organization failed to call meetii'igs.'during-, that
period or to take up the problem created by the reduction in pay,
either with the management or with its members, despite the fact
that, as both Beals and Shutler testified, its members were gravely
concerned by the reduction. Beals testified that "that-was not union
business."
We can only conclude from the docility and acquiesence displayed
by the Adams Independent, so soon after its formation, to the reduc-
tion, in pay, imposed on its members, that it was not interested in
genuine collective bargaining for its members.' This conclusion is
further demonstrated by the failure of the ..officers of the, Adams
Independent to recall the nature and even the existence of "'the first
closed-shop contract it. had entered into with the Adams Company.
The gaining of a closed-shop contract by a newly organized union is
of sufficient importance to impress itself on the memory of the officers
of that union. Its failure so to impress itself iii this instance reveals
that it was an easy and quick victory granted by' a company only
too eager to accord it recognition in order to satisfy the desire of the
company rather than the; request of the employees.'
The meetings of the Adams Independent in February 1938, and
thereafter, were held in the office of the Adams Company and on.
the. dock adjacent to the office. The Adams Company was not paid
for the use of its office or dock as a meeting place. The treasurer
of the Adams Independent collected dues on company property dur-
ing working hours.. Thus the Adams Company permitted the Adams
Independent to meet on the Adams Company's property and to
engage thereon in union activities: during -working hours.
6 No satisfactory explanation was offered by the officers of the * Adams Independent
as to why they failed to call meetings during that period . Beals, the secretary , testified
that no meetings were called because employees were unable to pay dues as a result
of the pay cut . However, this explanation argues more persuasively for the calling of
meetings rather than against it, particularly since there was no expense involved in
calling and conducting meetings.
6 See Matter of S. Blechman & Sons, Inc. and . United Wholesale Employees of New
York, Local 65, Textile Workers Organizing Committee-Committee for Industrial Organi-
zation, 4 N. L. R. B. 15. .
' Cf. National Labor Relations Board v. American Potash & Chemical Corporation et at.,
98 F. (2d ) 488 (C . C. A. 9), enforcing Matter of American Potash & Chemical Corpora-
tion and-Borax & Potash Workers ' Union No. 20181, 3 N. L. B. B. 140 , cert . denied 306
U. S. 643.
KEYSTONE FREIGHT LINES 1161
"Iri view of the foregoing we find that the Adams 'Company domi-
nated the formation and administration of the.:Adams independent
contributed support thereto.and
On March 23, 1938, the respondent,. pursuant to the transaction
described in Section I above, began its operation of the trucks -and
equipment- purchased. from the Adams Company. The respondent
conducted its operations from the same office and terminal from
which the Adams Company had conducted its southwest operations;
the respondent continued in its employ the former employees of the
Adams Company's' southwest division and, with some minor changes,
in the same capacity; said employees with the addition of four em-
'ployees then working for the respondent, comprised all of the
respondent's employees; and 'the respondent continued to use the
same equipment- in. the same manner, with minor- deviations, as it
'had been used by, the Adams Company. The changes that were
made were those normally made in the-conduct of any similar busi-
ness. The' two supervisory employees of the Adams Company, the
dock foreman, Keffer, and the manager, Sears, were retained by the
respondent and continued to supervise the respondent's 'employees.
We find that for the-purposes of this proceeding the enterprise owned
and operated by the 'respondent subsequent to March` 23, 1938, is
substantially the -saine enterprise that was owned and operated by
the Adams Company prior to that date.
B. Domination of and interference , with the Keystone Independent;
other interference, restraint, and coercion -
1. Sequence of events.
In April 1938, shortly after the respondent commenced its opera-
tions--of the former southwest division- of the Adams Company, the
officers of the Adams Independent called a meeting of the respond-
-ent's--eniployeesmi-n'the--office of the respondent; At the meeting, the
president of the Adams Independent, Shutler; proposed changing
the name of the Adams Union Truck Terminal -Road Drivers, Pickup
Drivers, Dock Workers, and Garagemen's Union, to Keystone Road
Drivers, Pickup Drivers, Dock Workers and Garagemen's Union.
The proposed change in name was accepted. .This was the only
change.that was made at the- meeting. No new elections were con-
ducted and the officers of the Adams Independent continued as the
officers of the Keystone Independent. We find that the Adams In-
dependent continued in existence as the Keystone Independent.
At the same meeting, Shutler presented a contract already executed,
signed by Shutler on behalf of the Keystone Independent and M. J.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sears on behalf of the respondent. The contract,'-dated March 28,
1938,. provided among other things that the respondent would employ
only members of the Keystone Independent. It further provided
that," should any member of the union, be by the union, suspended? or
expelled, the employer agrees to discharge, such member from its
employment within 30 days after receiving due notice of such sus-
pension or expelling. from said -union." The terms of the contract
between the respondent and the Keystone Independent were the same,
as the terms of the contract between the Adams Company and the
Adams Independent, the only difference being the change in the name
of the union.
From April 1938 to April 1939, the period during which Shutler
remained president of the Keystone Independent, meetings of the
Keystone Independent were held regularly'in the office of the respond-
ent. The respondent was. never paid by the Keystone Independent
for the use of its office as a meeting place. The record and the minutes
of-the meetings indicate that the respondent was cognizant of the,fact
that the Keystone Independent was holding meetings in its office..
On at least two occasions the meetings were called by the respondent,.
the assembled, employees were addressed by M. J. Sears, general man-
ager of the respondent, and after Sears had concluded and left .the
meetings, the Keystone Independent called its meetings to order. More-
over, matters which were discussed at the meetings called by the re-
spondent were, at the request of Sears, discussed and voted upon at the-
-meeting's called by' the Keystone Independent. The minutes of. the
meetings held by the Keystone Independent reflect the fact that the
principal matter, and most frequently the sole matter, considered at
the meetings was the question of sick benefits, provision for the pay-
ments of which was included in the articles of association and bylaws
of the Keystone Independent.
Summerlin, treasurer of the Keystone Independent until September
1938, collected dues during working hours and while on the respond-
ent's property. In September 1938 John Matthews succeeded Sum-
merlin as treasurer. In December 1938 buttons, bearing the insignia
"Keystone Freight Lines Company Union" and representing monthly
payment of dues, were issued. 'Three of the Board's witnesses testified
that the buttons were kept.by E. A. Keffer, the respondent's dock fore=
man, in a small. office on the dock. According to their testimony Kef-
fer kept the buttons locked in. a wooden cupboard -and assumed
supervision of their distribution. Keffer and Matthews denied that
the buttons were in Keffer's possession and both maintained that the
buttons had been placed by Matthews in the office so that they would
be easily accessible to Keystone Independent members. According to
the testimony of Matthews and Keffer, Matthews was frequently away
KEYSTONE • :FREIGHT LINES .1163
from:Tulsa and therefore it was necessary to leave the buttons in Tulsa
where they would be available to members. who' had paid their, dues:
Witnesses for the Board' testified on-.the other hand that on.several
occasions Keffer: issued buttons to them' and to other employees, and
collected dues from the employees during working hours. Keffer
denied that he had, ever collected dues; that he had ever. issued. buttons,
or that he even- knew what they, were. On cross-examination, how-
ever,, Keffer admitted that on.one or two occasions he did give buttons
to the respondent's employees. He further admitted that.on . one or
two.,occasions he was given money by the respondent's employees with
instructions to turn it over to. Matthews,, but that. he. did not know
the money was.to,be used for.. The.Trial.Examiner found fromwhat
his-obseryation of the witnesses, from the. testimony of Board witnesses,
and from the conflict. in Keffer's testimony, that Keffer; did issue but-
:tons to members of Keystone Independent and did on at least one or
two occasioins.collect, dues from,said,members....It is.diffl6ult,to, believe
that buttons, which could only be issued on the assurance that. dues,
had been paid, would be left easily accessible to the respondent's em-
ployees or thatKeffer did not know the nature of these buttons when
they.: plainly bore 'the insignia "Keystone. Freight Lines Company
Union." ' We find that the buttons' were kept in 'Keffer's possession,
that on various occasions Keffer issued buttons to the `respondent's
employees, and that on occasion Keffer collected Keystone Independent
m.ember'ship dues from the employees
Suiumerlin _ testified that several times during. the summer of 1938,
Sears-.told him,-`in" substance, that the Keystone Independent was a
"good: organization," thatthe "sick benefits was nice to have;' and,that
"as long as we had our organization. there would beano. other labor
organizations that would -come in..and interfere with our.work." Sum=
merlin ,further testified that in Ai..gust' 1938 Sears told him the
following
He said that he understood that some of the boys were not sat-
isfied with Delmar (Shutler). as president and he thought Delmar
was doing a fine job, that he was making a ,good president, and
that he thought, it was understood they was going to vote Delmar
out as president and if they. voted Delmar out as president. Charlie
Dozier was vice -president; and he, would- automatically be put in
as president. And if Charlie Dozier was put in as president he
.figured he would bust the Union up.
The following'Sunday an election was held and Shutler was,reelected,
-president. -Sears denied the foregoing-statements.- .'The Trial E'
aminer, who had-the opportunity to observe the witnesses, believed'the
1164 DECISIONS OF; NATIONAL LABOR RELATIONS. BOARD
testimony of. Summerlin.: We: find that Sears made the statements at-
tributed to him by Summerlin.
Rolen testified that on or about November 1, 1938, the following took.
place:.
Mr. Sears caiine to me, h was ' stamping- s'ohie bills in the' little
office on the dock and he came to me and said, "I heard last night
there was. a 'couple, of the boys 'here in the office si'gning' a Team-
stern' Union contract," and he said that this fellow ' who' told him
didn't know exactly who it'was and I told him tha.t'I was one of
them but that we wasn't signing piny contract, it was oinly a :copy
of the Teamster Union ,contract to show what they were." doing,
the wages, hours, and stuff like that. He wanted to know who the
other one was 'and I .told him it was Carl_ Woods; that we' was just
reading the contract and. talking it over, and he said if there was
anything'Iwanted to'tell him about any union activities out there
it would be confidential.,annd,wouldn't be made known to thel rest,
of the boys.
Sears denied making any of the above statements to Rolen at any
time. The Trial Examiner, who observed the witnesses, ,believed the
testimony of Rolen. We find that on or about November 1, 1938; Sears
made the above. statements to Rolen.
In.February 1939 Jess W. Caldwell,, business agent.for the team-
sters, began organizing the respondent's employees. About March 1,
1939, Roy E. Dowd, Harvey Rolen,..and Lee Summerlin.joined the
Teamsters. Summerlin testified that about March 10, 1939, in the reg.-
ular course of his duty,.as .pick up dri' er for the respondent, he drove
to the Christian Science Church, a, t.918 South Boulder Street for the
purpose of pickiing up .freight; .While. Summerlin was there ; . Sears
.drove up in his car, got out, went to Sumiller lin's truck, and.asked him
to come over and sit in his car. Summerlin further testified that
Sears questioned him concerning the activities of Caldwell, concerning
his-opinion as-to whether: or not Harvey Rolen, would join the Team-.
sters, and told'. him that 'he' (Sears), thought. Summerlin would be
"better off" as a member of-the Keystone Independent than as a mem-
ber of the Teamsters, rand that he would. "get along ,better with the
Company.". Sears admitted that he had a conversation with Summer-
lin at the Christian Science Church, but denied the conversation as
alleged by Summerlin. Sears testified that all that was discussed dur-
ing the conversation. was a collective' bargaining contract which he
alleged was under negotiation at that time. . Summerlin, recalled by
the Board' as a" rebuttalwitness; denied -that any negotiations .concern-
ing the contract took place at that time although he admitted that
there may have been some discussion concerning a wage increase.
KEYSTONE FREIGHT LINES 1165
Other evidence -shows that negotiations concerning the contract re-
ferred to by Sears did not take'place until a day or two prior to March
26, 1939.: The Trial Examiner, who had the opportunity to observe
the witnesses, credited the,testiinony of Summerlin. We agree with
the Trial Examiner and find that Sears, on about March 10, 1939, en-
gaged Summerlin in the conversation as recounted by Summerlin.
About April 1, 1939, the respondent entered into a new contract
with the Keystone Independent. Concerning the negotiations for
this contract, Dozier, at the time vice president of the Keystone Inde-
pendent, testified that he had discussions with Sears a. day or' two
prior to March 26, ,1939. It appears from his testimony that these
were, the first discussions he had had with the management about the
new contract. His recollections of the alleged negotiations were
vague. He testified that he "believed" Elam and Williams, members
of the central committee of the Keystone Independent, participated
in 'the''discussions. Dozier further testified that he drew up the
contract and put in a- clause providing for a 10-per cent wage
increase to take effect 3 months after April 1, 1939, after "we had
talked the thiiig over and Mr. Sears asked.me. to put that in the
contract."
Shutler testified that on the morning of March 26, 1939, he came
in to Tulsa, after an absence of about a month. He walked into the
office of Sears to greet. him and' found. Dozier there. They were
discussing the new contract. Shutler's testimony concerning what
occurred in Sears' office was as follows :
A. A's near' as I 'can remember Mr. Dozier was talking to Sears
when I came in.
Q. Do you recall what that conversation was that you heard
at that time? '
A. I don't believe I do.
Q. Was there anything said in it that you heard with reference
to wages ?
A. I believe there was something said they would like to keep,
the wages' as' they were for, about three months.
Q. Alright, do you remember who said that?
A: ' Mr. Sears. '
Q. Now, did you or Mr. '.Dozier. make any response to that
statement by Sears?
A. No, sir; not that I remember of.' • .
On cross-examination Shutler stated that as far as he knew the
Keystone Independent had not authorized Dozier to negotiate a
contract., The articles of association and bylaws of: the Keystone
Independent provided for a :.central committee . to conduct negotia-
tions with the respondent.. Dozier was not :a member of the central
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
committee.$• Despite:that fact;- ozier-apparentlyconducted.the,nego-
tiations, if such: they were, alone.
That day, March 26, 1939, the 'respondent, celebrating its * first
anniversary; 'called a - meeting of all its employees and provided
luncheon for them. After the luncheon the: Keystone Independent
held its meeting; at which Dozier presided, in the office of the re-
spondent.- -'While'''the meeting 'was in progress .. Sears^'•reinained on
the dock for about an hour talking to various of the respondent's
employees.
At this meeting Dozier presented the contract 'providing. for a
wage increase to take effect 3 months after April 1,-1939. He urged
.the assembled employees to accept the postponement of the wage' in-
crease as provided in the contract and told them that Sears had
asked him to tell them that the respondent was unable to grant an
earlier increase. 'Summerlin, who testified at.the hearing that "sev-
eral of the .boys.. thought we .ought to have a. ten per, cent increase
in wages and they asked me to take the floor and make a talk about
it,". spoke-at the meeting in favor. of an immediate increase and was
supported by Rolen, who also spoke.-in. its favor. Dowd spoke in
favor of shorter. hours and also questioned. Matthews concerning
the disposition, of Keystone Independent funds. He made the.state-
ment that he was not, going to pay any more dues :to the Keystone
Independent until he. knew where his money was going to. Sum-
merlin, Rolen, and Dowd were the only employees who expressed
opposition to the contract as proposed by Dozier. A vote was taken
on the question of a wage increase and resulted in a majority vote
in- favor of an immediate 10-per cent increase.
On^ April 1, 1939, a contract providing for an immediate ,10-per
cent increase in wages for all employees employed a year. or more
by the respondent was entered into by the respondent and the Key-
stone Independent. With the exception of the wage increase, the
contract provided for the same terms and conditions provided for. in
the preceding, contract. The.contract, to be-in effect. for, a: term, of 1
year, was to continue thereafter unless terminated by either party by
30 days' written notice prior to the expiration of its. term.
On the morning following the meeting Sears talked to Summerlin.
The.conversation which took place according to Summerlin was as
follows :
He (Sears) said, "Well, Lee, I understand you are still not
satisfied with your wages and hours," and I said, "No, it wasn't
8 Although there . was ' some testiniony'at the hearing that the officers of the Keystone
Independent functioned with the central committee the negotiating committee, the
articles of association and, bylaws delegate the negotiating power exclusively to the
central committee elected by members of the Keystone Independent . The central com-
mittee at the time of the negotiations . for the April 1, 1939 , contract consisted of Elam,
Williams, and Summerlin.
KEYSTONE FREIGHT LINES 1167
exactly - that, but I thought we ought to have an increase in
our wages for the hours,-we were working," and he said right
at that time there would be no wage increases and he said that
he thought this fellow Rolen was -having a big influence over
me by my talking so much at the meeting.
Sears admitted that he had a conversation with Summerlin on
iMarch 27, 1939, but denied that any reference was made to the effect-
that Rolen or Summerlin were dissatisfied with wages and hours.
On cross-examination Sears' recollection of the nature and-circum-
stances surrounding the conversation were vague: The Trial Exam-
iner believed the testimony of Summerlin. We find that Sears made
the statements as alleged by Summerlin.
'Later the same day Rolen was discharged by the respondent
because of his criticism of the Keystone Independent and his mem-
bership in the Teamsters; on the following day, March 28, 1939,
Dowd.was discharged for the••same.reasons.9
2. Conclusions
From the foregoing sequence of events it is clear that the Keystone
Independent was sponsored and maintained by the respondent and
that the Keystone Independent, as a. continuance of the Adams Inde-
pendent, no more represented the free choice of the: employees than
had the old organization.. The respondent's eager recognition of the
Keystone Independent, and the haste with which the closed-shop con-
tract was entered into with the Keystone Independent before it had
held its first meeting, evidenced. the respondent's intention to con-
tinue the domination and control 'exercised' by its predecessor over
the Adams Independent.
The Adams Company's sponsorship of and influence in the Adams
Independent was carried forward by the respondent in its support of
the:.'Keystone. Independent. The Keystone Independent. was per-
mitted- to continue its use of the respondent's property to conduct its
activities and to hold its meetings. In addition, the respondent ac-
tively participated in the affairs of the Keystone Independent.
Through its dock foreman it collected dues and issued dues buttons in
its possession to members of the Keystone 'Independent. At the same
time it expressed its. preference to various of its employees for' the
Keystone Independent as their representative and sought to influence
the members of this organization in their choice of officers. In con-
trast to the encouragement and support that it accorded the Keystone
Independent, the respondent expressed its hostility to the Teamsters
by questioning its employees regarding; Caldwell's activities and 'the
'The discharges are discussed in section C, infra.
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affiliation of its employees with the Teamsters , and by informing
Summerlin that he would "get along . better with the Company" if
he remained affiliated with the Keystone Independent rather than
with the Teamsters .., Employees are sensitive and'.responsive, to even
the most subtle expression on the part of their employer, whose. good
will is so necessary to their economic existencele The respondent's
marked favoritism to the Keystone Independent , standing out in
sharp relief against a background of hostility towards , the Teamsters,
clearly evinced the respondent 's desire to its employees to maintain
an "inside" labor organization for the purpose of frustrating any
attempts by the Teamsters or any other bona ` fide labor organization
to organize the respondent 's employees.l1
In addition to the marked preference for, and its participation in
the affairs of, the Keystone Independent , the respondent 's , sponsor-
ship and domination' of the Keystone Independent is further demon-
strated by , the ;barren history of collective bargaining between that
organization and the respondent . The efficacy of a labor organiza-
tion in dealing and negotiating with, the, employer on behalf of the
employees whom it represents and its efforts to protect and advance
the interests ' of those employees is some indication of that organiza-
tion's freedom from employer control12 That the Keystone Inde-
pendent made no effort to protect and advance the interests of its
members is clearly revealed by its failure , like that of its predecessor,
to act on grievances of vital concern to, its members.13 Absorbing
itself almost exclusively in its program of sick benefits , it failed even
to demand any improvements for its members until April 1, .1939,
more than 2 .years after its formation ; 4 at which- time the -respondent
granted . a. 10-per cent wage increase to its employees . Moreover,
even this wage increase , the postponement of -which had been desired
by the respondent and which had been granted only after the dis-
sident members of the Keystone Independent had objected to, the
10
National Labor Relations Board v. Griswold Manufacturing Company, 106 Fed. (2d)
713 (C. C. A. 3), enf'g Matter of The Griswold Manufacturing Company and Amalga-
mated Association of Iron, Steel, and' Tin Workers of North America, Lodge No. 1197,
6 N. L. R. B. 298. .
Cf. Matter of Texas Mining & Smelting Company and International Union of Mine,
Mill & Smelter Workers, Local No. 412, 13 N. L. R. B. 1163.
12 National Labor Relations, Board v. Wallace Manufacturing Co., Inc., 95 F. (2d) 818
(C. C. A. 4), enforcing Matter of Wallace Manufacturing Company, Inc. and Local No.
2237, Ui,ited Textile Workers-of America.; 2 N. L. R. B. 1081; .Matter. of Bemis Brothers
Bag Comany and Local No. 1838, United Textile Workers of America, 3 N. L. R. B. 267;
Matter of S. Blechman & Sons, Inc. and United Wholesale Employees of New York, Local
65, Textile Workers Organizing Committee-Committee for Industrial Organization, 4
N. L. R. B. 15.
13 There was testimony in the record indicating that the respondent's employees were
dissatisfied with the long hours imposed on them by the respondent and that the Key-
stone Independent never discussed this with the respondent.
14 See Matter of Titan Metal Manufacturing Company and Federal Labor Union No.
19981, 5 N. L. R. B. 577, enf'd Titan Metal Manufacturing Company v. Titan. Employees
Protective Association, 106 F. (2d) 254 (C. C. A. 3), cert. denied, 60 Sup. Ct. 260.
KEYSTONE FREIGHT LINES 1169
postponement, cannot be considered a gain resulting from bona fide
collective bargaining. It came, shortly after, the Teamsters had re-
newed their activities and at a time when the respondent knew that its
employees were receptive to the Teamsters.15 Furthermore when the.
members of the Keystone Independent urged upon the respondent
a greater gain than it had intended to grant, the respondent promptly,
discharged two of the employees who had voiced their criticism of
the proposed contract. We believe, under the circumstances, that
the -respondent granted the wage increase not as a result of the
assertion of bargaining power by the Keystone Independent but
rather as a concession to counteract the possible effects of the Team-
sters' activities . 16
The character of the negotiations that were conducted in con-
nection with the April 1, 1939, contract also reveals the impotent and
subservient nature of the Keystone Independent.Y7 It will be re-
called that the first'attempts at "negotiation" for that contract took
place a day or -two prior to the March 26, 1939, .meeting. of, the Key-
stone Independent, where it was presented for the' approval of the
respondent's employees. The negotiations were principally, if not
solely, conducted by. Dozier, the then vice president of the Keystone
Independent, despite the fact that the articles of association and by-
laws of the Keystone Independent provided for a central committee,
of which Dozier was not a member, to conduct such negotiations.18
Furthermore, it is apparent from the testimony of Shutler and Dozier
that the "negotiations" were in reality instructions by Sears. Dozier
stated that lie inserted the clause postponing the wage increase in
the proposed contract at the request of Sears. He made no effort
to oppose the postponement of the increase or to bargain in con-
section therewith. Moreover, at the Keystone Independent meeting,
he urged the employees attending the meeting to accept the post-
ponement of the wage increase and informed them that Sears had
told him to 'tell them that the respondent was not in a position to
grant an immediate increase. It is significant .that the members of
15 As pointed ' out in the sequence of events above, on March 10 , 1.939, Sears questioned
Summerlin concerning Caldwell's activities : Rolen , Dowd , and Summerlin had joined
the Teamsters at that time , and Sears , apparently aware of that fact , questioned Summerlin
about Rolen 's membership with the Teamsters.
1° Cf. National Labor Relations Board , v, American Potash d Chemical Corporation at al.,
98 F. (2d ) 448 (C . C. A. 9), enforcing Hatter of American Potash cf Chemical Corpora-
tion and Borax cG Potash Workers ' Union No . 20181, 3 N. L. R . B. 140, cert . denied 306
U. S. 643. .
17 Cf. Matter of Industrial Rayon Corporation and Textile Workers Organizing Co+n-
mittee, 7 N. L. R. B. 877.
is Dozier testified that he "believed " either one or two others participated in the nego-
tiations of the April 1, 1939, contract, and oil further questioning he testified be "believed"
Elam and Williams participated with him. Obviously, if either or both had participated,
their participation 'would have been fixed in his memory more definitely than a mere
belief. Moreover neither Elam nor Williams testified in corroboration of that belief.
There is some evidence that Dozier had not been authorized to conduct any negotiations.
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Keystone Independent repudiated Dozier's consent to the', post-
ponement of the wage increase.
Finally the prompt discharges , discussed in Section C below, of
two of the only three employees who expressed their opposition at
the March 26, 1939, • meeting to the contract proposed by Dozier is
further evidence , of the. domination and influence exerted , upon the
Keystone Independent by the respondent ., As pointed out by the
court in National Labor Relations Board v. American Potash. and
Chemical Corporation, 10 "a discriminatory discharge may just as well
be directed toward domination of a labor organization as toward a
dissolution or a driving out of a labor organization."
We find that the respondent , by the ' above-described conduct, has
dominated and interfered with- the administration of the Keystone
Independent and has contributed support thereto and that the re-
spondent has- thereby interfered with, restrained , and coerced its
employees in the exercise of the rights guaranteed in Section 7 of
the Act.20 We further find that the . contract .- of -April 1, 1939;
entered ' into by the respondent and the Keystone Independent, is
invalid because it was made with a labor organization the administra-
tion of which had been dominated , interfered with, and supported
by the respondent .21
We find that the respondent 's conduct described above tends to lead
to labor disputes burdening and obstructing commerce and the free
flow of commerce.
C. The discharges
Roy E. Dowd was employed by the respondent on November 14,
1938, as a dockman, loading and unloading freight trucks, between
the hours of 8:30 a. in. and 7 p. in. to 10 p. in., as the work required.
He was paid by the respondent $97.50 per month during the entire
period of his employment. Two or three weeks. after he was hired he.
was transferred to the night, shift. He continued to work on the
night.. shift between 6 p. in. and 7 a. in. daily, 13 .days -out .of each
2-week period, until the day of his discharge, March 28, 1939. His
duties consisted of helping to load trucks for about,1 or 2 hours, after
19 National Labor Relations Board v . American Potash and Chemical Corporation , et. al.,
98 F. (2d ) 488, 495 (C. C. A. 9), enforcing Matter of American Potash & Chemical
Corporation and Borax & Potash Workers ' Union No . 20181, 3 N. L. R . B. 140, cert . denied
306. U. S. 643.
20 There is some testimony that Sears attempted to persuade Summerlin to return to
work after he had refused to pass a picket line . set up in front of the respondent's
plant on April 13, 1939. However , the record is insufficient to support a finding that
the respondent thereby engaged in- an unfair labor practice within the meaning of Section
8 (1) of the Act. ' .
21 Matter of Electric Auto -Lite Company, Bay Manufacturing . Division and Interna-
tional Union , United Automobile Workers of America, Local No . 526, 7 N . L. R. B. 1179,
Matter of McKeig-Hatch, Inc. and ' Amalgamated Association of Iron , Steel, and Tin
TVorkers of North America, Local No. 1199, 10 N. L. R. B. 33. .
KEYSTONE FREIGHT. -LINES 1171
which he was required to load a small truck, known as the. Stillwater
truck, and finally to sweep and watch the respondent's. property.... He
was referred to as the night watchman. The record clearly shows
that the work required. of the night watchman was considerably less
strenuous .than the -work required of the daytime dock workers.
Dowd;joined the KKeystone Independent in December 1938; About
March 2, 1939,. lie joined the Teamsters. On March 26, 1939, at. the
meeting 'of. the Keystone Independent, Dowd participated in opposing
the contract proposed by Dozier and also. questioned the treasurer
concerning disposition of dues collected by the Keystone Independent.
On the morning of March ' 28, 1939, Dowd was discharged by
George Spurgin, vice president of the respondent. Spurgin informed
Dowd that he was discharged,' because. his duties as night watchman
were being "eliminated." He gave Dowd a letter of recommendation
stating Dowd was, discharged because the respondent eliminated the
. .duties of night watchman.
At the.hearing Spurgin gave. several reasons for Dowd's discharge.
On direct examination by the respondent's counsel, Spurgin stated
the following. as the reason for Dowd's discharge :
At that time, Mr. Dowd had asked for a helper for a job on
which we had never had a helper before and apparently he was
having- a hard time holding the job, and at that time we extended
our Arkansas. operations in such a manner that the truck went
through to Oklahoma City and then back during the night which
would' throw another' schedule in there` on the night shift; and.
obviously if he couldn't load one truck, just a small truck, he
couldn't load two, one of which was a road truck and which
would hold three times. the amount of tonnage which he had been
'accustomed to loading.22
In answer to. -a statement made by, Shryock in the Tulsa World con-
cerning the respondent's reason for discharging Dowd and Rolen,
Sears. submitted the following. statement which was printed in the),
Tulsa. World on April 23, 1939:
As for the two men discharged for union activities referred to
by Gordon Shryock, state representative of the union, they were
laid off about three weeks ago, not discharged, because of tem-
porary physical handicaps.23
.12 On cross-examination it appeared that the truck scheduled for the Arkansas run
carried 15,000 pounds of freight whereas the Stillwater truck carried between 10,000
and 12 ,000 pounds.
23 Sears admitted that he was accurately quoted in the newspaper item. He further
admitted -that he knew the 'distinction between a lay-off and a discharge but did not
explain why he had said that Dowd and Rolen had been laid off.
1172 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD
On April 24, 1939, Spurgin submitted . to the Oklahoma State De-
partment-of Labor , Division of Unemployment Compensation, a form
stating that Dowd was "separated from his employment" :because he
was "physically unfit and couldn 't pass an examination."
In addition , Spurgin testified on redirect examination that Dowd
had been discharged because he was unable to_perform his work and
because the respondent was eliminating the functions of night watch-
man. Thus the respondent asserts variously that Dowd had been laid
off because of a temporary physical handicap , that he 'had been dis-
charged because he was "physically unfit and couldn 't pass an exami-
nation," because of the elimination of his job, and finally because he
would be unable to manage the increase in work occasioned by the
extension ' of the Arkansas operations. None .of these reasons is sup-
ported by the record.
Ewel Renfro 24 was employed by the respondent on March 27, 1939,
the day before Dowd's discharge, as a combination day and night
watchman. Renfro worked as a pick-up driven from 3 p. in. to 6
p. m. From 7 p. m. to midnight, with' the exception of watching the
respondent 's property at night, he performed substantially the, same
work that Dowd had performed , namely, loading trucks generally for
an hour or two. and thereafter loading the Stillwater truck. Until
August 7, 1939 , the respondent's offices and docks were closed . at mid-
night with no night watchmen attending.
On August 7, 1937, Elmer Arnett was employed by the respondent
in the same capacity as Dowd had been employed. From that. date
until the date of the hearing, Arnett performed the same duties that
Dowd had performed, including night watching. On May 30, 1939,
and until 10 days prior to August 7, 1939, Schultz was employed by
the respondent in substantially the same capacity and with substan-
tially the same duties as Renfro . We are of the opinion that Dowd's
duties as night watchman were not eliminated at the time of his dis-
charge but were temporarily suspended to afford the respondent a
pretext upon which to explain Dowd's discharge and were resumed
several months thereafter when the, respondent . believed the suspen-
sion had served its purpose . After the date of his discharge there
were at least two of the respondent 's employees , subsequently hired,
who were engaged in performing duties which had been performed
by Dowd . Obviously if the respondent 's sole motive in discharging
Dowd were the elimination of the . night watchman's functions, Dowd
would have been given sufficient work to keep him in the respondent's.
employ. Moreover , when the respondent resumed its night .watcliing
it failed to recall Dowd but employed Arnett instead as a night
watchman.
24 Also referred to in the record as Emil Renfro.
KEYSTONE FREIGHT LINES 1173
The respondent not only asserts that the night watchman 's duties
were eliminated but that Dowd was unable to assume the additional
burden of work, created by the extension of the Arkansas operations,
without a helper. The record shows that the extension of the Arkansas
run, which would have necessitated the loading of an additional
truck. during the night, was not put into operation until 1 month
after Dowd. had been discharged. Furthermore, it is obvious that
the contemplated additional truck to load required a helper. Be-
tween May 30. 1939, a month after the Arkansas truck was put on
the night schedule, and a week or 10 days prior to August 7, 1939,
both Renfro and Schultz were required- to load the Stillwater and the
Arkansas trucks,.and on August 7, 1939, and thereafter, both Renfro
and Arnett, the night watchman, continued to load the Stillwater and
Arkansas trucks. Although Spurgin testified that Dowd's work had
never required a helper, it is apparent from the record that occasion-
ally it was essential to have a helper to assist in the loading of heavy
pieces of freight or to help load the trucks that made the run to
Stillwater, when there were two such trucks to load instead of the
customary one. It was not unusual to request a helper under either
of these circumstances. Upon these facts we do not believe that
Dowd's discharge is to be accounted for by the increase in work con-
templated by the extension of Arkansas operations.
Concerning Dowd's alleged physical unfitness and his inability to
pass an examination, the record reveals that Dowd had been em-
ployed as it bus driver by a motor-coach company owned by J. Will
Spurgin, father of George Spurgin and president of the respondent;
that approximately 3 years prior to Dowd's employment by the re-
spondent Dowd fainted while driving a bus; and that Dowd was
unemployed thereafter until the date of his employment by the re-
spondent. J. Will Spurgin testified that he had been informed by the
doctor, who had examined Dowd at that time, that Dowd would
never be able to drive a vehicle again.
George Spurgin, who hired Dowd at his father's request, testified
that his father told him about Dowd's physical condition approxi-
mately 1 week after Dowd's employment. Spurgin further testified
that it was on the basis of this information that he issued the'state-
ment that Dowd was physically unfit and could not pass an examina-
tion. Dowd was at no time required by the respondent to submit
to a physical examination . We are satisfied from all the evidence that
Dowd was not discharged for an. alleged physical unfitness admit-
tedly known by the respondent 4 months prior to the discharge. We
do not believe, under the circumstances, that the respondent would
have waited 51/2 months before releasing Dowd.
283035=42-vol. 24--75
1174 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
In contrast to its alleged concern over Dowd's physical. unfitness
and capacity to work, we note that Dowd's predecessor was a 65-year
old man who had retired from his employment with the respondent
to secure an old-age pension, and Dowd's successor, Elmer Arnett, an
old employee of the respondent, had been ill and unable to work for a
period of a year immediately preceding his employment by the re-
spondent. The respondent with full knowledge of Arnett's previous
incapacity hired him without ascertaining or even inquiring as to
either the cause for his incapacity or his physical condition at the
time of his employment. On cross-examination concerning his knowl-
.edge or Arnett's physical condition or the nature of his illness,
Spurgin showed a remarkable indifference to those facts, finally
explaining his indifference with the implication- that it was not neces=
sary to make inquiries concerning the health of an employee who
was employed on the night man's job.25
Although the respondent's witnesses testified that Dowd's ina-
bility to perform his work persisted over the entire period of his
employment, he was not disciplined or warned that his work Was un-.
satisfactory. Moreover, the respondent's witnesses were unable to
particularize in what manner Dowd's work was unsatisfactory
During extensive cross-examination George Spurgin was unable to
state what factors impelled him to discharge Dowd. He made many
23Spurgin , who hired Arnett, testified concerning his interest in Arnett' s physical
condition as follows :
Q. Was he injured in the course of his employment, or what was wrong with him
[referring to Arnett] ?
A. He wasn't injured . Oh, I didn't pay any attention to that. I don't know what
was wrong with him.
Q. What kept him off from work for a year?
A. Shoot, I couldn't answer that.
Q. You don't know?
A. No, sir ; I don't know:
Q. And you took a man who had been off from work for a year with some disability
you didn't know about and put him on that job on August 7tb ?
A. On the night man's job ; yes, sir.
26 The testimony of J. Will Spurgin, concerning Dowd's alleged unsatisfactory work,
is typical. Spurgin testified as follows :
A. . . . Roy fell off quite a bit, and was looking bad, and I,told him he looked bad and
asked him if he thought he was going to be able to do the work and he said he thought
he would.
Q. Was there ever any occasion when lie didn't get the truck loaded, or sweep up or
do the job?
A. Well, when I saw him he was always helping to load the others, and then he loaded
his own truck after that, I don't know nothing about that.
Q. And, your statement lie was not able to do the work was based on the fact you would
see him out there while. others were loading trucks there in the evening?
A. That is right.
Q. And, on several occasions you would ask him if he'thought he was able to do the
work, and lie told you that he was?
A. That is right.
Q. That is what your statement he wasn't able to do the work is based on?
A. Yes, sir.
KEYSTONE' FREIGHT LINES 1175
evasive and contradictory statements concerning the immediate cause
for Dowd's-diseharge.2
From an examination of the foregoing facts and on the basis of the
entire record, we are unable to give credence to the reasons offered by
the respondent for Dowd's discharge.
Although Spurgin testified that he was not aware-of what occurred
at the March 26, 1939, meeting or that Dowd was a member of the
Teamsters, nevertheless, in view of the conversations Sears had with
Summerlin on March 10, 1939, at the Christian Science Church and
in his office on March 27; 1939, we find that Spurgin was aware both
of Dowd's membership in the Teamsters and of his participation in the
March 26, -1939, meeting, which resulted in the successful opposi-
tion to the respondent's desire to postpone the wage increase. We
have pointed out that this opposition at the meeting was responsible
for the first gains made for the members of the Keystone Independent
since the inception of that organization.
In view of the circumstances described above, we agree with the
finding of the,Trial Examiner and we conclude that Dowd was dis-
charged because he joined and assisted the Teamsters. We find that
the respondent, by discharging Dowd, has discriminated in regard
to hire and tenure of employment, thereby discouraging membership
in a labor organization and interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
We find that'the respondent's conduct described above tends to lead
to labor disputes burdening and obstructing commerce and the free
flow of commerce.
Harvey Rolen was employed by the respondent as a pick-up driver
in the city of Tulsa, in June 1938, at a monthly rate of $97.50. On
zr George Spurgin testified as follows :
Q. . . . What was the factor that came to your attention preceding March 28th, when
you finally decided to fire him?
A. Well, as previously testified , on three or four occasions Roy said he couldn't do it,
and he needed a helper.
Q. What was the specific factor that came to your mind before that with reference to
March 28th when you finally decided to fire him?
A. You mean actually when I made up my mind to do it?
Q. Yes.
A. My father told me to.
Q. 'And , where were you at that time , Mr. Spurgin?
A. Well, I couldn't state that.
Q. Now, was it your father ' s idea , or did you suggest it to your father?
A: I suggested it in talking it over with : him; naturally , he is the president, and it
was his okeh that caused me to let him go. - -
Q. You talked with your father that week-end about it?
A. I believe the 23rd or 24th or 25th, somewhere in there.
Q. Now , when was it that you made up your mind that Roy ought to go?
A. I made up my mind it long time . before I actually got around to doing it.
Q. Now, what was the factor that made you actually get around to doing it?
A. well, I couldn ' t say just what actually was the factor which caused me to make
up my mind he should be left out. -
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
June 15, 1938, Rolen joined the Keystone Independent. In November
of 1938 Sears interrogated Rolen concerning his activities with the
Teamsters and requested Rolen 'to inform him of its future activities.28
'About March 1, 1939, Rolen joined the Teamsters. About a week later
Sears questioned Summerlin, while engaged in the conversation with
him in front of the Christian Science Church, about Rolen's affiliation
with the Teamsters.
At the Keystone Independent meeting on March 26, 1939, Rolen
supported Summerlin in his opposition to the. postponement of the
wage increase. We have found that Rolen, Summerlin, and Dowd
were the only members who openly opposed the contract proposed by
Dozier.29 On March 27, 1939, Keffer, instructed by Sears, discharged
Rolen. That day Sears told Summerlin that he thought Rolen had
"too great an influence" on Summerlin.3o
The respondent asserted at the hearing as an explanation for
Rolen's discharge that its insurance broker advised it to discharge
Rolen because his -employment with the respondent constituted an
undue risk.
Rolen had been employed by the Tindall Motor Company in
October 1933. About December- 30, 1937, while so employed, he was
injured. Subsequent to the injury Rolen continued in the employ
of the Tindall Motor Company until June 4, 1938 and on September
26, 1938, he filed suit against that company alleging total and perma-
nent disability claiming damages in the sum of $56,147.10. The local
newspaper carried an article describing the action taken by Rolen
against his former employer.31
About 1 month after the law suit was reported in the newspapers
Sears called Rolen into his office and questioned him concerning it..
At that time, 5 months -before his discharge, Rolen informed Sears
that he was principally interested in reinbursement for the medical
expenses that he had incurred in connection, with his injury. - Both
Keffer and Sears considered Rolen a capable worker. Sears char-
acterized Rolen's work as "swell," and both Keffer ahd Sears knew
that Rolen frequently in the course of his duties lifted heavy weights.
Sears testified at the hearing that 2 or 3 weeks prior to March 27,
1939, he heard rumors that for the first time indicated to him the
nature and extent of the injuries that Rolen alleged he had sustained
2s The conversation with Sears is more particularly described in Section III B, supra.
20 None of the employees who opposed Dozier 's proposals are now employed by the
respondent . Rolen and Dowd were discharged within a day or two subsequent to the
expression of their opposition . Summerlin went on strike against the respondent on
April 13, 1939. The record does not disclose what connection the strike had with the
activities discussed herein, but it appears that Summerlin has never returned to the
respondent ' s employ. -
so The conversation is more particularly described in Section III B , supra.
81 The suit was settled by Rolen on September 25, 1939, for $275.
KEYSTONE FREIGHT LINES 1177
and the amount Rolen was claiming for damages. On cross-exami-
nation Sears stated that he called the Tindall Motor Company for
.verification of the amount involved in -the suit, but that he -did not
discuss with this company the nature of the alleged injuries.'' Sears
further testified that immediately upon verifying the amount in-
volved in the suit he called Claiborne W. Davis, the insurance broker
for the firm that carried the respondent's insurance, informed him of
the facts involved in Rolen's personal-injury claim, and asked for his
advice. -
Sears stated that Davis informed him that "we must at all times
keep our men physically fit." Davis corroborated Sears' testimony
concerning the telephone call.
Sears made no effort to ascertain Rolen's true condition. He did
not have Rolen examined by a doctor, nor did he discuss the matter
with Rolen subsequent to his conversation with Davis and prior to
Rolen's discharge, despite the fact that he knew Rolen was a capable
worker and was accustomed to lifting heavy weights.32
Whereas Sears testified at the hearing that he learned the extent
of Rolen's claims for the first time 2 or 3' weeks prior to March 27,
1939, from rumors, he stated in a deposition taken on April 1, 1939,
while acting 'as a witness on Rolen's behalf in the action 'against the
Tindall Motor Company, that he discharged Rolen "due to the notice
he gave me. himself of his injury" 2 or 3 months before April 1, 1939.
He further testified in the deposition that he called Rolen in to dis-
cuss his personal-injury suit at that time, "due to the fact that I
know the rules of the insurance company to a certain extent, even
though I hadn't been given specific instructions." The record also
indicates that Sears had been aware' of the insurance carrier's rule
concerning employment of disabled persons prior to March -1939.33
Thus, from the record and the foregoing conflict in Sears' testimony,
it is apparent that Sears, with knowledge of the insurance carrier's
rules concerning employment of disabled persons, was fully apprised
of the facts involved in the afore-mentioned personal-injury action at
least 2 or 3 months prior to the date of Rolen's discharge.
The Trial Examiner, while stating in his Intermediate Report that
"the evidence is conflicting on some points regarding the reason for
Rolen's discharge and his physical condition while employed by the
82 Rolen was required to submit to a physical examination in connection with subse-
quent employment and was found to'be in good condition.
as In attempting to reconcile his testimony In the afore-mentioned deposition that "at
the same'time (the time of Rolen's discharge) there were other people discharged on
account of physical disability," with his testimony given at the hearing "that there was
no other persons discharged along about that time on account of physical disability,"
Sears testified at the bearing that "from time to time there had maybe been people dis-
charged from the company due to the fact that it was . the policy of the insurance
company."
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent" concluded that "the respondent discharged Rolen because
of the advice of the insurance company carrying, its compensation
insurance and not for the reason alleged in the complaint." In so
concluding, the Trial Examiner overlooked evidence appearing in the
record which indicated that the respondent failed to take any steps
whatsoever in connection with Rolen until the Teamsters. had com-
menced its .activities and Rolen had joined the Teamsters, despite
the fact that, as we have pointed out, the respondent was cognizant of
the facts involved in Rolen's lawsuit for at least 2 or 3 months prior
to the time it. first called Davis. The Trial Examiner explained the
respondent's sudden interest in Rolen's physical condition by the fact
that the respondent was making a change in its compensation-insur,
ante carrier at that time. However, the record indicates that no such
change was then made or contemplated. Furthermore, it was not
until several weeks after it had solicited the advice from Davis that it
acted upon it. Coincidentally, it acted upon that advice immediately
after the meeting in which Rolen successfully urged the respondent's
employees to demand an immediate wage increase. No satisfactory
explanation appears in the record why the respondent, who con-
sidered Rolen's employment with it a "hazard," 34 delayed discharging
him several weeks after it received the advice from Davis.
In view of the foregoing and the entire record, we are convinced that
the respondent terminated Rolen's employment solely because of his
membership and activity on behalf of the Teamsters. We find that
the respondent by discharging Harvey Rolen, discriminated in regard
to his hire and tenure of employment, thereby discouraging member-
ship in the Teamsters and interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
We further find that the respondent's conduct described above tends
to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
At the time of his discharge Rolen was receiving $97.50 per month.
Subsequent to his discharge Rolen was employed between March 27
and July 11, 1939, by Brashear Freight Lines, Inc., Viking Freight
Company, and English Freight Company, from whom he earned,
respectively, $21.69, $25.48, and $3.30. After his employment with
the afore-mentioned companies, Rolen was employed on June 11, 1939,
by H. & N. T. Motor Freight Company. - At the time of the hearing
he was earning $29.70 weekly-
u Sears stated at the hearing that Rolen 's employment with the , respondent constituted
a hazard.
KEYSTONE FREIGHT LINES 1179
IV. THE REMEDY
We have found that the respondent has engaged in unfair labor
practices by interfering with, restraining, and coercing its employees
in the exercise of rights guaranteed in Section 7 of the Act, by domi-
nating and interfering with the administration of the Keystone. In-
dependent, and by discriminating in regard to hire and tenure of
employment, thereby discouraging membership in a labor organiza-
tion. Accordingly, we shall order the respondent to cease and desist,
therefrom and to take.certain affirmative action designed to effectuate
the policies of the Act and restore, as nearly as possible, the situation
that existed prior to the commission of the unfair labor practices.
We have found that the respondent dominated and interfered with
the administration of the Keystone Independent in an attempt to cir-
cumvent the provisions of the Act and to deny to its employees the
rights as guaranteed by Section 7 of the Act. We shall therefore
order the respondent to withdraw all recognition from the Keystone
Independent as -a labor organization representing its employees for
the purposes of dealing with the respondent, and to cease giving effect
.to the agreement with the Keystone Independent as bargaining agent
of its employees, or to any modifications or extensions thereof or to any
successor agreement.35
We have found that the respondent discharged Roy E. Dowd and
Harvey Rolen and thereafter refused to reinstate said employees for
the reason that they joined and assisted a labor organization and en-
gaged in concerted activities for the purpose of collective bargaining
and other mutual aid and protection. We shall therefore order the
respondent to offer Roy E. Dowd and Harvey Rolen immediate rein-
statement to their former or substantially. equivalent positions.36 We
shall further order the respondent to make whole Roy E. Dowd for
any loss of pay he has suffered by reason of his discharge by payment
to him of a sum equal to that amount which he would normally have
earned as wages from the date of his discharge to the date of his offer
a5 Matter of Titan Metal Manufacturing Company and Federal Labor Union No. 19981,
5 N. L.. R . B. 577 , enf'd Titan Metal Manufacturing Company v. Titan Employees Pro-
tective Association , 106 F. (2d) 254 (C. C. A. 3), cert. denied , 60 Sup. Cf. 260 ; Matter
of Moore-Lowry Flour Mills Company and Flour Mill and' Cereal Workers Union No.
20601; 21 N. L. R. B. 1040. -
se We do not believe that there is 'sufficient evidence to warrant a finding that Rolen
has secured substantially equivalent employment elsewhere. Even though he had secured
such employment , however, we do not believe that he thereby became remediless for the
purposes of future employment by the respondent . See Matter of Eagle-Picher Mining
&^ Smelting Company, a corporation , and Eagle -Picher Lead Company , a, corporation, and
International Union of Mine , Mill & Smelter Workers , Locals Nos. 15, 17, 107, 108 , and 111,
16 N. L . R. B. 727.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of reinstatement, less his net earnings 37 during said period. Since the
Trial Examiner found that the respondent had discriminatorily dis-
charged Harvey. Rolen we shall order the respondent to make him
whole for any loss of pay he may have suffered by reason of his dis-
charge by payment to him of a sum equal to the amount he would
normally have earned as wages from the date of his discharge to the
date of, the Intermediate Report and from the date of our Order to
the date of the offer of reinstatement, less his net earnings during said
period.38
Upon the above findings of fact.and upon the entire record in the
case, the Board makes the following ;
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Stablemen,
and Helpers, Local 523, affiliated with the American Federation of
Labor, and Keystone Road Drivers, Pickup Drivers, Dock Workers,
and Garagemen's Union are labor organizations, within the meaning
of Section 2 (5) of the Act.
2. By dominating and interfering with the administration of Key
stone Road Drivers, Pickup Drivers, Dock Workers, and Garage-
men's Union and by contributing support thereto, the respondent
has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Roy E. Dowd and Harvey Rolen, and thereby discouraging
membership in International Brotherhood of Teamsters, Chauffeurs,
Stablemen, and Helpers, Local 523, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of Sec-
tion 8 (3) of the Act.
4. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed by Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
37 By "net earnings" is meant earnir'gs less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent , which would not have been incurred but for his unlawful
discharge and , the consequent necessity of his seeking employment elsewhere. See
Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners
of America , Lumber and Sawmill Workers Union , Local 2590 , 8 N. L. R . B. 440 . Monies
received for work perform"d upon Federal , State, county. municipal , or other work -relief
projects are not considered as earnings , but as provided below in the Order shall be
deducted from the sum due to the emnloyPe . and the amount thereof shall be paid over
to the appropriate fiscal agency of the Federal , State, county, municipal , or other gov-
ernment or governments which supplied the funds for said work -relief projects.
38 Matter of E. R . Haffelfn,ger Company/, Inc. and United Wall Paper Crafts of North
America, Local No. 6, 1 N. L . R. B. 760 ; Matter of Firestone Tire and Rubber Company
of California and United Rubber Workers of America , Local 100, 22 N. L. R .. B. 580.
KEYSTONE FREIGHT LINES 1181
5., The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the, meaning of Section 2 (6) and (7) of,
the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that the
respondent, Keystone Freight Lines, and its officers, agents, succes-
sors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Stablemen, and Helpers, Local 523, affiliated
with the American Federation of Labor, or any other labor organi-
zation of its employees, by discriminating in regard to hire and ten-
ure of employment or any terms or conditions of employment;
(b) Dominating or interfering with the administration of Key-
stone Road Drivers, Pickup Drivers, Dock Workers, and Garage-
men's Union or With the formation or administration of any other
labor organization of its employees and from contributing support
to Keystone Road Drivers, Pickup Drivers, Dock Workers, and Ga-
ragemen's Union or any other labor organization of its employees;
(c) Recognizing Keystone Road Drivers, Pickup Drivers, Dock
Workers, and Garagemen's Union as the representative of any of its
employees for the purpose of dealing with the respondent concern-
ing grievances, labor disputes, wages, rates of pay, hours of employ=
ment, or other conditions of work;
(d) Giving effect to any agreement which it may have with said
Keystone Road Drivers, Pickup Drivers, Dock Workers, and Garage-
men's Union ;
(e) In any other manner interfering with, restraining, or coercing
its employees, in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining and other
mutual aid'or protection, 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) Withdraw all recognition from Keystone Road Drivers,
'Pickup Drivers, Dock Workers, and Garagemen's Union as the repre-.
sentative of its employees for the purpose of dealing with the respond-
ent concerning grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of work, and completely dis-
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
establish said Keystone Road Drivers, Pickup Drivers, Dock Workers,
and Garagemen's Union as such representative;
(b) Offer Roy E. Dowd and Harvey Rolen immediate and full re
instatement to their former or substantially equivalent positions,
without prejudice to, their seniority and other rights, and privileges;
(c) Make whole Roy E. Dowd and Harvey Rolen for any loss 'of
pay they have suffered by reason of the respondent's discrimination,.
by payment to Roy E. Dowd of a sum of money equal to that which
he would normally have earned as wages from March 28, 1939, to the .
date of offer of reinstatement, and by payment to Harvey Rolen of
a sum of money equal -to that which he normally would have earned
as wages from March 27, 1939, to February 10, 1940, and from the-
date of the Order herein to the date of offer of reinstatement, less,
their respective net earnings during:said periods, provided that the.
respondent shall deduct from the back pay due each employee a,
sum equal to that received by such employee for work performed on
Federal, State, county, municipal, or other work-relief projects- dur
ing the period for which back pay is due him under this Order,
and pay any such amount deducted to the appropriate fiscal agency,
of the Federal, State, county, municipal, or other government or.
governments financing such, work-relief projects;
(d) Post immediately in conspicuous places at its offices and ter-,
minal, and maintain for a period of at least sixty (60) consecutive.
days from the date of posting, notices to-its employees stating: (1),
that the respondent will not engage in the conduct from which it is.
ordered to cease and desist' in paragraphs 1 (a), (b), (c), (d), and
(c) of this Order; (2) that the respondent will take the affirmative
action set forth in paragraphs 2 (a), (b), and. (c) of this Order,;,
and (3) that' the respondent's, employees are free to become or to
remain members of International Brotherhood of Teamsters, Chauf-
feurs, Stablemen, and Helpers, Local 523, and the respondent will.
not discriminate against any, employee because of membership or
activity in that organization;
(e) Notify the Regional Director for the Sixteenth Region in
writing -within ten (10) days • from the date of this Order what
steps the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, as. amended, be, and
it hereby is, dismissed, in so far as it alleges that the respondent
engaged in unfair labor practices, within the meaning of. Section -8
(1) of the Act,. by advising Lee Summerlin, a striking employee of
the respondent, to abandon the strike and to cease affiliation with the
International Brotherhood of Teamsters, Chauffeurs, Stablemen, and
Helpers, Local 523.
, KEYSTONE FREIGHT LINES 1183
MR. WILLIAM M. LEIsnIso , dissenting in part:
I dissent from that part of the Order which requires the respondent
to offer reinstatement to Harvey Rolen. Subsequent to his dis-
charge Rolen. obtained employment in Tulsa similar to that which he
had performed for the respondent and at a higher wage. At the
hearing he did not indicate that he desired reinstatement to•his for-
mer position. Under the circumstances I would limit the remedy
with respect to Rolen to an award of back pay from the date of his
unlawful discharge to the date on which he obtained such other
employment.