Laney Tank Lines, Inc.

National Labor Relations Board - Board Decisions

Aug 8, 1967

166 N.L.R.B. 1053 (N.L.R.B. 1967)

LANEY TANK LINES, INCORPORATED
Laney Tank Lines, Incorporated and General
Drivers, Warehousemen & Helpers Local Union
No. 509 , affiliated with the International Brother-
hood of Teamsters , Chauffeurs , Warehousemen &
Helpers of America . Case 11-CA-3197
August 8, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On June 14, 1967,Trial ExaminerJames V. Con-
stantine issued his Decision in the above -entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found that the Respondent had not engaged in
other unfair labor practices alleged in the complaint
and recommended that those allegations be
dismissed. Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the Respondent's ex-
ceptions, and the entire record in this case, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, as modified
below. I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, Laney Tank Lines, Incor-
porated, West Columbia, South Carolina, its of-
ficers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order.
1 We find, in agreement with the Trial Examiner , that the Respondent
discriminatorily discharged Brazell because of his union activity, and that
the reasons advanced by the Respondent for the discharge were pretexts.
In affirming the Trial Examiner 's finding that the Respondent had
knowledge of Brazell 's union activity , we rely solely on the Union 's letter
to Respondent, dated October 31, 1966, naming Brazell as a member of
the Union's employee committee.
In the absence of exceptions thereto, we adopt pro forma the Trial Ex-
aminer's conclusion that certain conduct did not violate Section 8 (a)(1) of
the Act.
1053
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Trial Examiner : This case
came on to be heard , and was tried , before me at West
Columbia , South Carolina, on March 13 and 14 , 1967. It
is an unfair labor practice case prosecuted pursuant to
Section 10(b) of the National Labor Relations Act, herein
called the Act (29 U.S.C. 160(b)). It was commenced on
January 20, 1967, by a complaint issued by the General
Counsel of the National Labor Relations Board (through
the Acting Regional Director for the Board 's Region 12,
at Winston-Salem, North Carolina). That complaint is
based on a charge filed on December 1, 1966, by the
Charging Party, Local Union No. 509, against Laney
Tank Lines , Incorporated , the Respondent herein. In es-
sence the complaint alleges that the Respondent has vio-
lated Section 8(a)(1) and (3), and that such conduct af-
fects commerce within the meaning of Section 2(6) and
(7) of the Act. Respondent has answered , admitting some
facts but denying that it committed any unfair labor prac-
tices.
At the hearing all parties were represented at and par-
ticipated in the trial and were granted full opportunity to
introduce evidence , examine and cross -examine wit-
nesses , submit briefs , and offer oral argument . A brief has
been received from the General Counsel.
The issues in this case are:
1. Whether Respondent interfered with, restrained, or
coerced its employees by (a) coercively interrogating
them concerning their union activities, sympathies, and
desires , and those of other employees ; (b) promising
wage increases to employees if they abandoned their
union activities ; (c) threatening to close its truck terminal
at West Columbia, South Carolina, if the Union became
the bargaining representative of the employees there; and
(d) telling employees that some of them could not qualify
for employment if the Union were voted in.
2. Whether employee Marvin A. Brazell was dis-
criminatorily discharged for union activity.
Upon the entire record in this case , and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
1. ON JURISDICTION
Respondent , a South Carolina corporation , with a ter-
minal at West Columbia (also referred to as Lexington in
the complaint), South Carolina, is engaged in the business
of hauling liquified petroleum gas. Only this terminal is in-
volved in this proceeding . During the year preceding the
issuance of the complaint on January 20, 1967,'Respond-
ent received revenues in excess of $50,000 for products
shipped to commercial concerns engaged in interstate
commerce , and also purchased petroleum products
valued in excess of $50 ,000 directly from points outside
the State of South Carolina . I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will effectuate
the purposes of the Act to assert jurisdiction over
Respondent in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
General Drivers, Warehousemen & Helpers Local
Union No . 509, affiliated with the International Brother-
166 NLRB No. 129
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hood of Teamsters , Chauffeurs, Warehousemen & Hel-
pers of America, herein called the Union or Local No.
509, is a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
In October 1966 , the Union commenced a campaign to
organize Respondent 's truckdrivers . By letter dated Oc-
tober 31 , 1966 ,1 the Union wrote to Respondent that
Local No. 509 "has a majority of your drivers, in your
West Columbia terminal , on application. [We] are asking
for a meeting at your earliest convenience for seeking
recognition of Local 509." (General Counsel's Exhibit 2.)
On the same day the Union (a) filed a petition for an elec-
tion 2 with the Region 11 of the National Labor Relations
Board in Case 11-RC-2461, and also (b) wrote a letter to
Respondent in substance informing the latter that a com-
mittee of employees had been formed at the West Colum-
bia terminal "to get a union in" at said terminal "for better
wages and hours , and working conditions." Said letter
listed the names of the members of the committee, one of
which is that of Marvin A. Brazell . (See G .C. Exh. 3.)
A. Interference, Restraint, and Coercion; General
Counsel 's Evidence
Delmar Lee Hale is a truckdriver for Respondent
working under Supervisor R. W. Chewning , the manager
of its West Columbia or Lexington Terminal . Only that
terminal is involved in this proceeding. Hale signed a
union card and was openly active "working for the
Union." At the time he was hired on October 5, Hale
filled out an application for employment and also a "bond
document."3 In his employment application Hale stated
that he had been employed in Florida as a truckdriver,
whereas he alleged in the "bond application" that he was
self-employed as a carpenter. In fact he was not self-em-
ployed , and this last statement was false. But this "vari-
ance" or "discrepancy" was never called to his attention
by Respondent. Eleven or twelve days later Hale signed
a union card. In filling out the employment and bond ap-
plications on about October 5, Hale told Terminal
Manager Chewning he was uncertain about dates.
Chewning replied that "on or about" would be satisfacto-
ry. His duties required Hale to deliver by truck LP
(liquified petroleum) gas to purchasers in Georgia, North
Carolina, and South Carolina.
About November 16, Supervisor R. E. Reddick,
assistant to Respondent 's president, in the presence of
Terminal Manager Chewning , requested Hale for, and
received , permission to ask a question . Thereupon,
Reddick asked Hale if Hale ever belonged to a union
labor organization . Hale replied in the negative. Then
Reddick said that unions "were all crooks and ex-con-
victs" and were interested only in Hale's union dues and
initiation fees , and gave an example of a "fellow" who
stole enough to build a new home . Reddick also referred
to Mr. Hurt, the Union 's secretary-treasurer, as a person
who "was run out of Atlanta because he wasn 't no good,
and they couldn't keep him over there ." Hale is identified
in the Union 's October 31 letter, to Respondent as a
member of the organizing committee . (See G.C. Exh. 3.)
Continuing, Reddick asked Hale "who headed the Union
up," and , when Hale replied that "we were all ... talking
and it [the Union] came up," insisted "there had to be
one individual."
At this point Reddick left the room to answer the
telephone . Thereupon Terminal Manager Chewning
asked Hale to "consider about the Union" because
Chewning was so worried about the Union that he could
not sleep at night . In addition , Chewning said that em-
ployees Brazell and O'Shields were too old to get a job el-
sewhere , that Hale was approaching that age himself, that
employee Bill Collins 4 was not qualified to work under
the Union 's qualifications , because "Collins couldn't read
the fuel pumps right," and that another driver, Bill Rivers,
did not have enough experience "under the Union."
Finally, Chewning told Hale that the Company was in a
position to offer, and was considering offering , a pay raise
but could not as long as the employees were "messing
with the union men."
About December 6, Hale telephoned Supervisor
Reddick to inquire why Schumpert , a driver with less
seniority than Hale , had been assigned to a new truck.
Replying that "we operate more or less on a seniority ba-
sis," Reddick asserted that Schumpert was given the new
truck because Schumpert "would bear with them and go
along with them and help them out and they would go
along with" Schumpert. By this Reddick meant that
Schumpert would help out in slack times although he
could avoid this and still collect his guaranteed salary, as
all Respondent 's employees received a guaranteed salary
regardless of the amount of work they performed. Then
Reddick added that if the Union came in Respondent
would "layoff [employees ] in the slow season and
couldn 't give them the guaranteed salary." Finally,
Reddick said, "If it wasn 't for the other companies sup-
porting that Company, that they would have to close the
doors at the Lexington terminal ." See Transcript, p. 21,
lines 18-20. This last quotation in the preceding sentence
is unintelligible and I have disregarded it in making
findings of fact and conclusions of law herein . Finally,
Reddick said that he would tell Terminal Manager
Chewning to give Hale the next new truck.
About the middle of October Hale tore up a power
take-off shaft on his truck . But he was never reprimanded
for this.
William H. Collins is a truckdriver for Respondent,
working at its Lexington, South Carolina , terminal. His
name appears as an employee committeeman in General
Counsel's Exhibit 3. When he executed an application for
employment, he informed Terminal Manager Chewning
that he, Collins , "didn 't have the dates right." Chewning
replied that "it didn 't matter about the dates" as long as
"the former employers [were] listed."
About November 25, 1966 , Terminal Manager
Chewning asked Collins if Collins had signed a union
card . When Collins replied that he had, Chewning asked
him if he "had read the posters ." Collins said that he did.
Then Chewning inquired as to "who headed up this
thing?" Collins responded by saying "We all thought it up
together ... in a conversation." Finally , Chewning asked
I All dates hereinafter mentioned refer to the year 1966, except where
otherwise specifically noted.
2 On December 9, the Regional Director for Region 11 directed an
election on this petition.
3 Actually, Hale dictated the information to Supervisor Chewning who
typed it in the blank spaces of the form.
4 Bill Collins is mentioned in the October 31 letter , from the Union to
Respondent as a member of the union committee . (See G.C. Exh 3.)
LANEY TANK LINES , INCORPORATED 1055
if Collins "was in on the card signing ," to which Collins
answered in the affirmative.
Joseph E . Collins is a truckdriver employed since May
16, 1966, by Respondent at its Lexington or West Colum-
bia, South Carolina, terminal . Terminal Manager
Chewning is his immediate supervisor. Collins is men-
tioned in General Counsel's Exhibit 3 as a member of the
employee committee. When Collins applied for a job at
this terminal , he filled out an application . Not being cer-
tain of the dates of his previous employment, Collins
asked Chewning what to do about it. Chewning told Col-
lins to guess "as close ." So Collins "guessed at them" in
mentioning such dates . But although some of such dates
were incorrect , nothing was ever said to him on this sub-
ject thereafter. Nor has anything been mentioned to Col-
lins about the remainder of his application.
About November 18, Terminal Manager Chewning
said to Collins, "I don't have to tell you that you signed a
card. You know that you did." When Collins replied that
he did , Chewning retorted, " I wish you guys would have
come in and talked with us ... we might have given you
a raise ... but [we] could not , that you all was the kind
of people that you couldn't talk to .... If you all will go
and withdraw your name we might give you a couple of
cents raise ." When Collins suggested that Chewning call
all the employees to the office to talk to them,5 Chewning
answered , "I am afraid that they [meaning President
Laney and assistant to the president, Reddick] are going
to close this terminal down .... I am too old and Sam [a
driver] is too old and Robertson [another driver] doesn't
have any guts, and we couldn 't go out and get a decent job
.... If you all go and withdraw your names , they might
even consider [giving employees ] 20 percent" of the
revenue . Continuing , Chewning remarked that the
brother of Collins and W. C. Rivers, another driver,
lacked "enough experience" to hold down a union job.
Collins has sometimes been given a key to unlock gates
of plants where such gates are unattended . Collins
testified that a.m . delivery meant a delivery to be
completed before noon, and that he has made a.m. deliver-
ies at 10 a.m. or 11 a.m. without comment from Respond-
ent. He further testified that keys were given to him so
he could "get in" closed places "in case you have a break
down," as well as to make deliveries when he found gates
closed . But he has never heard the words "key stop" ac-
tually mentioned . He completed all of his deliveries by 8
a.m., and some even by 7 a.m., except that once , because
he overslept , he made a delivery at 9 a.m . at Marion,
North Carolina. Chewning never told him when to make
a.m. deliveries except that he, Collins, should try to
deliver to Carlisle Finishing at 8 a.m.
B. The Discharge of Marvin A. Brazell;
General Counsel's Evidence
Brazell was hired by Respondent about May 12, 1966,
as a truckdriver at its Lexington or West Columbia ter-
minal to haul LPG (liquified petroleum gas). At that time
he filled out an application in the presence of Terminal
Manager Chewning and Kirby O'Neal, a friend of
Brazell . To the best of his knowledge , the information
Brazell wrote on the form was correct. Prior to October
1966 , Respondent did not again mention or refer to these
application forms to Brazell . His work required Brazell to
make deliveries in North Carolina, South Carolina, and
Georgia. Each day 's assignment was made known to him
by delivery tickets prepared by another employee or, if
Brazen completed a day 's work at 5 p.m., by his calling in
for instructions.
About the middle or late October , Brazen started to
solicit truckdrivers to sigh union cards . He succeeded in
obtaining 'signatures from six employees and he also
signed a card himself. He turned over these seven cards
to Union Secretary-Treasurer R. F. Hurt . These cards
were given to him at the union hall on Sumter Street,
Columbia, South Carolina . In addition, he attended all
but one of the Union 's organizing meetings.
On a Saturday afternoon in early November , Terminal
Manager Chewning asked Brazen , "Who headed up this
union thing?" Brazell replied that a group of employees,
rather than a single individual , decided to bring in the
Union. Then Chewning said he hoped that the employees
knew what they were doing , that he , Chewning, and
Brazen , also, were getting too old to look for a job, and
that the Union had "broken" two companies where
Chewning formerly worked.
In making deliveries , the tickets designating the
customer to receive liquified petroleum gas specify only
a.m. or p . m. delivery . The a.m . delivery meant any time
until noon was acceptable , while the p . m. delivery per-
mitted delivery any time prior to midnight . Brazen fol-
lowed this "practice" and was never late to his knowledge
in delivering liquified petroleum gas. On about November
1, Brazell 's delivery ticket called for an "8 a.m." delivery
to Bailey Brothers . He arrived there a few minutes before
8 a.m. and , consequently, was on time . Brazell was
trained on this job for Respondent by Sam O 'Shields. At
no time did O'Shields say that a.m. meant delivery by 8
a.m.
On November 28, Brazell was dispatched to Chester,
South Carolina , with a load of gas for Cooper Gas Ser-
vice . He returned to Respondent 's terminal about 11:15
or 11 : 30 a.m . On the way back he entered Interstate
Route 26 from Interstate Route 20 by way of a ramp.
While traveling on the ramp , Brazen passed a pick-up
truck on his right. This truck was "nearly stopped" as he
passed it . As he entered Route 26 , he observed a car ap-
proaching from his left on Route 26. He then entered
Route 26 because the road was clear. However, the
operator of that other car on his left, an Aetna "insurance
man," stopped Brazen . Respondent carries insurance
coverage with Aetna Insurance Company . After the in-
surance man checked the equipment , lights, and
everything on Brazell 's truck , the insurance man com-
plained that Brazell entered Route 26 "pretty fast."
Brazell defended himself by saying he had "this traffic
situation" under control , that he was "observing
everything ," and knew what he was doing . Then the in-
surance man "made out a report." During this conversa-
tion the insurance man called Brazell 's attention to a leak
in the air line of the truck.6 After the foregoing talk
Brazell proceeded to Respondent 's terminal where he ar-
rived in about 5 to 10 minutes.
5 A few days later Chewning told Collins it was against the law to call in 65 miles an hour and reported it to Respondent . Chewning told Brazell
the employees "with the union campaign going on." However, Chewmng about this and said that traveling "no more than 54" will get the job done
"went to talk" to the employees . But the report was never brought to Brazell's attention.
6 In October, Brazell had been clocked by an Aetna insurance man at
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the terminal Brazell made his customary check of
his truck and also informed Henry Murphy in the office
that the truck's air line had a leak in it. Murphy is Respond-
ent's service man at the terminal. President Laney and
Supervisors Reddick , Price , and Chewning were present
at the time . So Brazell also told them about the leak.
Price , who is in charge of personnel for Respondent, does
not have an office at the Lexington terminal . Chewning is
manager at this terminal . Reddick is assistant to the pre-
sident. When Brazell asked Murphy which truck "to run
first," Terminal Manager Chewning told Brazell to wait
a few minutes "until we decide which ... we are going to
run first." Thereupon , Brazell returned to the truck.
After waiting about 10 or 15 minutes at his truck,
Brazell was invited by Murphy to return to the office. As
Brazell entered the office , Personnel Supervisor Price
handed a folded piece of paper to him and asked Brazell
if he remembered signing it . It was "an application form"
but it was blank. At the bottom that paper recited "this is
to certify that the above statements are true to the best of
my knowledge ." When Brazell replied in the affirmative,
Price remarked that "It looks like you falsified your appli-
cation." At Brazell's inquiring how he falsified, Price an-
swered, "by the dates and reason for leaving your former
employers .7 It is not like you have got it listed on the ap-
plication ." Then Price added , "It looks like we are going
to have to let you go [but ] I hope you would resign."
By refusing to resign , and stating that Price could get
rid of him only by firing him, Brazell insisted "you know
as good as I do why you are firing me." Then Price asked
Brazell to return Friday to pick up his wages due. But
Brazell demanded that he be paid then since he was being
fired. Thereupon Terminal Manager Chewning, upon
being directed by Price to do so , paid Brazell . As Brazell
left "they" said to him "we will see you , Brazell ." At this
Brazell said "0. K., Dixie [Chewning], I will be seeing
you," and he also told Price, "I'll be seeing you all the
way, captain."
During his employment by Respondent , Brazell never
had a "chargeable" accident or any wrecks, never
received any "traffic citations ," and was orally repri-
manded but once by Respondent . This reprimand, given
by assistant to the president , Reddick, was for bending a
power take-off shaft on a tractor in the latter part of the
summer of 1966 at Estill, South Carolina . At Reddick's
request Brazell signed a damage report, but refused to
sign an accident report, involving the bent shaft. How-
ever, Reddick and Terminal Manager Chewning each had
one or two "little arguments ," which were "kind of
heated ," with Brazell about his work. Brazell admits that
he "blows [his] top right quick" and that he had "done
that several times . . . up here with this company."
On one occasion in September 1966 , Supervisor
Reddick asked Brazell , about the middle of the day, to go
out on a run to Anderson, South Carolina, when Brazell
had just returned from a delivery. However , Brazell sug-
gested that he be allowed to make it late in the afternoon
because he wanted to avoid bumper to bumper traffic and
"the sun was coming in from the west ." By going in the
evening Brazell would be able to take 2 hours less to
make the delivery . In the conversation Brazell "blew
[his] top ." And although Brazell told Reddick to fire him
"if you don't like my work," Brazell was not discharged.
On some trips Brazell was given a key to enter the
premises of an establishment if he was scheduled to make
a delivery before such place opened. These were called
key stops. Such places were "for sure" opened at 8 a.m.
However, even when he made a delivery after 8 a.m.,
Brazell often needed a key to open a locked gate of a
customer who was to receive a delivery because no
attendant would be present to unlock the gate.
Brazell made the following deliveries under the circum-
stances noted, as brought out on cross-examination:
Time of
Kind of Completion
Delivery of Delivery
Date Customer Place Ticket by Unloading
November I Not Lovica, S.C. A.M. I I a.m.
Mentioned
November 2 General Anderson, S.C. A.M. I1 a.m.
Gas Co.
November 3 Not Swannanoa, N.C. A.M. I P.M.
Mentioned
November 4 Not - A.M. 9:45 a.m.
Mentioned
November 7 Not - not specified 5:30 p.m.
Mentioned on ticket
November I 1 Suburban Waynesville, N.C. 11 a.m. 12 noon
Propane
November 17 Not Patterson Springs, A.M. 11:30 a.m.
Mentioned N.C.
November 23 Not Old Fort, N.C. A.M. 10 a.m.
Mentioned
7 Actually, Brazell was discharged by Overnite Transportation Com-
pany Then he went to work for Bowman Transportation Company.
LANEY TANK LINES , INCORPORATED 1057
About October 1, Brazell made a delivery to Denmark,
South Carolina. The tank to which he was to deliver the
load was located on a "little dirt road." In maneuvering
the truck to an unloading position, Brazell got it stuck in
the sand. Therefore he made no effort to load the tank.
Ultimately a wrecker, sent by Respondent, rescued the
truck. Actually, this was the wrong tank, as it contained
fertilizer. Since Brazell had not been there before, he was
unfamiliar with the area and had proceeded to this tank
under a misapprehension. However, the correct tank,
containing gasoline, was a little farther down this "little
dirt road." Brazell later on made the delivery to this latter
tank. But he was never reprimanded for this incident.
This was before Brazell began his union activity.
At no time prior to Brazell's discharge did Terminal
Manager Chewning mention to Brazell that the latter was
making late deliveries. Nor did Chewning refer to
Brazell's alleged late deliveries or "bad safety reports" at
the time of Brazell's discharge.
Sometimes Terminal Manager Chewning showed em-
ployees insurance company reports relating to their driv-
ing, although the employees had not been aware that an
insurance man had observed their operation of Respond-
ent's trucks. Brazell also was shown by Chewing reports
submitted regarding Brazell's driving.
C. Respondent's Evidence
1. R. E. Reddick's testimony
As heretofore found above, R. E. Reddick is assistant
to Respondent's president. I further find that he is a su-
pervisor under Section 2(11) of the Act. He denies that he
asked any employees if they had signed union cards or
were in the Union. But he claims "it is entirely possible"
that he discussed with employee Hale "the reputation
of the officials of the Union."
Reddick discussed with President Laney, Terminal
Manager Chewning, and Personnel Manager William K.
Price the conduct of employee Brazell prior to Brazell's
discharge. But Brazell was not discharged for falsifying
his application, although Reddick ascertained after
Brazell started to work for Respondent that Brazell had
"misstated his prior work history on his application." On
cross-examination, Reddick said that "falsifying his appli-
cation wasn't the determining factor" leading to Brazell's
discharge. However, Brazell's work record was "very
poor."
Some customers complained to Reddick that they suf-
fered inconvenience because employees made late delive-
ries to them. In this respect Brazell "was one of the ones
that was guilty more often than anybody else." Yet
nothing 8 was done about that. One complaint came from
Suburban Propane in Marion, North Carolina, that on
November 25 Brazell had delivered gas to it between
9:30 and 10 a.m., whereas 9 "we like to have our gas
delivered by seven-thirty." That is Suburban's "require-
ment." Sometime later Brazell's "general attitude, work
record, and so forth" were discussed, and President
Laney decided that Brazell should be discharged.
Another fault of Brazell is that his carelessness caused
"very expensive" damage to a part of his truck's power
take-off equipment.
According to Reddick, a.m. delivery "means the earli-
est possible hour that you can deliver this product," and
he has so informed "a number" of Respondent's drivers.
Seventy-five percent of Respondent's customers require
early morning delivery "before their trucks are sent out
of the plant." The premises of some customers are known
as key stops, i.e., a key is given to Respondent's driver so
he can deliver there before the plant is opened. But keys
are not given to Respondent's drivers who may have
breakdowns in order to facilitate or enable them to enter
a plant when it is closed.
Two or three weeks before November 28 Reddick
spoke to Brazell concerning the latter's making p.m.
deliveries at night instead of the afternoon. Replying that,
being "a man," he could do only so much, Brazell asked
Reddick to fire him. Although Reddick did not fire
Brazell, Reddick did tell Brazell that he would consider
Brazell as having resigned if Brazell refused to pull the
load the two were then discussing. Brazell agreed to pull
the load, and the conversation thereupon ended.
On November 28 Reddick met President Laney at
Respondent's West Columbia or Lexington terminal.
Soon Personnel Manager Price arrived. These three,
together with Terminal Manager Chewning, who was also
present, discussed Brazell. Laney had come there to pick
up Reddick so the two could go to another terminal on
company business. Reddick was also on his way to in-
vestigate a complaint by Suburban Propane in Marion,
North Carolina, about a late delivery. It was "coin-
cidence" that Laney and Reddick happened to be at
Columbia. During the discussion, Price received a
telephone report from "the insurance company" concern-
ing Brazell's driving that morning. After this call Pre-
sident Laney said that Brazell would have to be fired, and
the other three supervisors concurred. Then Supervisors
Price and Chewning were instructed to discharge Brazell.
Respondent's speed limit for its trucks is 50 miles an
hour, but "we permit fifty-five miles per hour under cer-
tain conditions," i.e., when the truck is traveling down hill
in a zone permitting a speed of 55 or more miles an hour.
Although Brazell once went 65 miles an hour, nothing
was said to him about it.
Reddick further testified that Brazell's damaging the
power take-off shaft on a truck "most certainly ... was
part of the reasons" for Brazell's discharge, and that "the
insurance report" had something to do with his discharge.
Also, Brazell insisted on making an afternoon delivery in
the evening and this had something to do with his
discharge, but it was not mentioned to Brazell at the time
of Brazell's termination.
2. J. T. Laney's testimony
Respondent's president is J. T. Laney. He testified that
Respondent wanted its drivers to deliver "as early as we
can in the morning, and ... all circumstances they are
to be there no later than eight o'clock in the
morning. Because that is the only way that we get our
product delivered on time. That is when the people want
it." All terminal managers "Know to notify every driver"
of this. The a.m. delivery "means eight a.m. delivery."
On November 28 Laney arrived at the West Columbia,
South Carolina, terminal to pick up assistant to the pre-
8 Reddick also testified he had "been involved in a discussion directly
with Brazell about deliveries ." On cross-examination Reddick testified he
never talked to Brazell about "delaying" deliveries.
9 It is not clear whether "we" refers to Suburban Propane or Respond-
ent
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sident, Reddick, so that the two could go together to
another terminal. However, they did not go to that other
terminal. Instead, since Personnel Manager Price was in
Columbia on other business that day and came over to the
West Columbia terminal, and "it came up about Mr.
Brazell," the three of them discussed Brazell with Ter-
minal Manager Chewning. They went over Brazell's
"work tickets," his "work record " His work record was
very, very poor. Then Laney made the decision to
discharge Brazell "on the basis of [Brazell's] records and
finding these late deliveries, and complaints that we had
from our customers which we cannot tolerate ... We
took in [consideration] everything But that is the main
reason ... We looked back from his application right on
through until we got the call from the insurance company,
and that settled it " Laney instructed Chewning and Price
to discharge Brazell
In reviewing Brazell's record Laney also considered
the damage caused by Brazell to the power take-off shaft,
Brazell's "trying to deliver propane in a fertilizer tank,"
and Brazell's "attitude" as reported by customers whom
Laney declined to identify These unnamed customers
asked that Brazell not be sent back to them, but Laney
did not specify why such customers objected to Brazell.
One such customer complaining about Brazell "was
brought out" at the hearing. (I assume this is Suburban
Propane in Marion, North Carolina )
3. The testimony of William K Price
Price is in charge of personnel for Respondent. About
II a m. on November 28, he came to the West Columbia
terminal on routine business. But he had Brazell's record
and a "memo" on Brazell with him at the time 10 He
found President Laney, assistent to the president,
Reddick, and Terminal Manager Chewning there. All
four discussed Brazell and "went over his record very
thoroughly." During this period a call came in to Price
from the insurance company relating to Brazell. There-
upon Price reported the substance of the call to Laney.
Shortly thereafter, Laney directed Price to discharge
Brazell and Price carried out this instruction.
Informing Brazell that "we were going to have to
discharge" him because his services were "unsatisfacto-
ry," Price told Brazell that "from the beginning [ Brazell]
hadn't done too good ajob, and that it had gotten increas-
ingly worse " Although Price then gave Brazell an oppor-
tunity to resign, Brazell refused and said, "You'll have to
fire me." Thereupon, Price started to give Brazell "a
complete record, but just after we got through with the
application portion, [Brazell] blurted out. `1 know what
the reason is you are firing me . I will go all the way
with you "' Price replied that was all right with him
When Price asked Brazell to return for his pay the follow-
ing Friday (December 2), Brazell demanded his wages
immediately.
Price was unable to "complete the conversation as
[he] had laid it out" because "Brazell interrupted me, and
I didn't want to get into an argument with him " How-
ever, Price did not ask Brazell about the fertilizer tank in-
cident, or the safety report of the insurance man, or the
conversation with Supervisor Reddick concerning the
evening run to Anderson, South Carolina, or late delive-
ries; nor did Price specifically mention what part of his
application Brazell had falsified . Price knew about this
application defect " prior to this but had never talked to
Brazell about it. As to the insurance safety report, Price
testified that he did nothing about it because the terminal
manager supervising a driver is "supposed to take what-
ever action is necessary."
4. The testimony of R. W. Chewning
The manager of Respondent 's terminal at West Colum-
bia, South Carolina, is R. W . Chewning. That facility is
also called the Lexington or Columbia terminal.
Chewning testified that he never asked any employee
questions as to whether such employee was in the Union
or signed up for the Union . In fact , Chewning once be-
longed to this Union for 3 or 4 years. However,
Chewning did tell "practically all" of the employees at his
terminal that the Union had "broken" two companies he
was "involved with ." Further , Chewning denies that he
ever told any employees that Respondent would close
down this terminal if the Union came in , or that the em-
ployees would get any raise in pay if they turned down the
Union, or that Respondent would abolish its guaranteed
salary for drivers if the Union came in . In fact, he did not
discuss the Union with employees except to mention
"what the Union had done to [ him]."
On several occasions Chewning told employee Brazell
that a.m . delivery meant "eight o 'clock , and, if he had a
key that he could deliver prior to that ." On a couple of
runs scheduled for afternoon delivery , Brazell "didn't
want to pull it until that night ." Chewning once consented
to a night delivery , but once or twice additionally Brazell
did not go until nighttime on an afternoon run.
Chewning was present when Supervisor Price
discharged Brazell on November 28. Although Chewning
corroborates Price on much of what transpired at that
time, Chewning 's testimony differs from that given by
Price in the following respect : Chewning testified that
Price mentioned as grounds for dismissing Brazell not
only the falsified application but also "unsatisfactory ser-
vice [and] many other things."
Chewning further testified that he was unaware that
any part of Brazell 's application contained incorrect
statements until the morning of the day Brazell was
discharged on November 28. Two or three weeks before
November 28, Chewning talked to Brazell about the
latter 's late deliveries. But Brazell did not always make
late deliveries ; sometimes he made early deliveries.
Chewning mentioned late deliveries at least three times
to Brazell prior to receiving General Counsel 's Exhibit 3,
which is dated October 31, 1966.
Generally Chewning designates only a.m. or p.m. on
delivery tickets , but occasionally he will specify 7 or 7:30
a.m. Chewning knew of only one complaint concerning an
a.m. late delivery, i.e., the one to Marion , North Carolina,
on about November 25, and "several" as to p.m. late
deliveries . However , the p . m. late deliveries all occurred
in October.
D. Concluding Findings and Discussion as to the
Discharge of Marvin A. Brazell
It is my opinion, and I find, that Brazell was discharged
for activity on behalf of the Union, and that the grounds
1° In fact , Price testified that he had all the personnel records of the
West Columbia drivers in his brief case
LANEY TANK LINES , INCORPORATED
assigned by Respondent to justify his termination are pre-
texts to disguise the true reason. This ultimate finding
that Brazell was discharged for union activity is based on
the entire record and the following subsidiary facts set
forth in this subsection III, D of this initial Decision.
As Chief Judge Parker has observed, " . . . direct
evidence of a purpose to violate the statute is rarely ob-
tainable" in connection with an employee's discharge.
Hartsell Mills v. N.L.R.B., 111 F.2d 291, 293 (C.A. 4).
Accord: See N.L.R.B. v. Bird Machine Co., 161 F.2d
589, 592 (C.A. 1); Northern Virginia Steel Corp. v.
N.L.R.B., 300 F.2d 168, 174 (C.A. 4); N.L.R.B. v.
Laney & Duke Storage Warehouse Co., 369 F.2d 859,
868 (C.A. 5). Instead, the employer will point to real or
imaginary shortcomings of the employee as the reason for
terminating his employment. Corrie Corp. v. N.L.R.B.,
375 F.2d 149 (C.A. 4). Hence, it is necessary to deter-
mine , as a matter of reasonable inferences flowing from
an evaluation of the whole record, whether such em-
ployee derelictions or union hostility motivated the
release of the employee. Radio Officers Union (A.H. Bull
Steamship Co.) v. N.L.R.B., 347 U.S. 17, 50. I proceed
to narrate the subsidiary findings mentioned in the
preceding paragraph.
1. Brazell openly espoused the Union and actively sol-
icited members on its behalf. Of course, this does not
shield him from being discharged for cause nor safeguard
him from being lawfully disciplined by his employer.
Wellington Mill Division v. N.L.R.B., 330 F.2d 579,
586-587 (C.A. 4), cert. denied, 379 U.S. 882; Metal En-
gineering Corporation, 148 NLRB 88, 90. "Obviously
the discharge of a leading union advocate is a most effec-
tive method of undermining a union." N.L.R.B. v.
Longhorn Transfer Service, 346 F.2d 1003, 1006 (C.A.
5).
2. Respondent was aware of Brazell' s union activity.
In the first place, Respondent admits that it received
General Counsel's Exhibit 3 (dated October 31, 1966),
which designates Brazell, along with others, as a member
of a union committee "to get a union in at Laney Tank
Lines, Inc. at West Columbia terminal," and informs
Respondent that Brazell will serve in such capacity.
In the second place, I find that because of the few em-
ployees working at this terminal, it may be described as
a small plant . Hence, the NLRB small plant rule becomes
operative. That rule warrants the inference -and I draw
it-that Respondent became aware that Brazell was en-
gfiging in union activity. Angwell Curtain Co. v.
N.L.R.B., 192 F.2d 899, 903 (C.A. 7); New French
Cleaners, 139 NLRB 1176, 1179, footnote 10. But see
Dubin-Haskell Lining Corp. v. N.L.R.B., 375 F.2d 568,
where the U.S. Circuit Court of Appeals for the Fourth
Circuit seems to disapprove the National Labor Rela-
tions Board's small plant rule. But I am bound to follow
NLRB decisions when they conflict with those of a Cir-
cuit Court of Appeals. See Iowa Beef Packers, Inc., 144
NLRB 615, 616, where it is said that when examiners fol-
low Board precedents it promotes "a uniform and orderly
administration of a national Act." Thus, until the
Supreme Court pronounces a precedent on an issue
(which thereby becomes binding throughout the nation),
it is desirable that national policy in this sphere of the law
I I The fact that Brazell was prevailed upon to make the run in the after-
noon does not alter the fact that he was insubordinate in objecting to an
order of his Employer to drive his load to Anderson in the afternoon.
Further , I find that Respondent 's evidence is insufficient to show that
1059
be uniformly administered in conformity with NLRB
precedents, rather than depend upon the geographical
area over which a Circuit Court of Appeals is vested with
jurisdiction. Since there are 11 such Circuit Courts, it is
conceivable that some of them may disagree with others
upon an identical issue of law. Such divergence of court
decisions upon the same question of law does not offer a
uniform solution to the same problem in all parts of the
country.
3. Timing is important. Don Swart Trucking Co. v.
N.L.R.B., 359 F.2d 428 (C.A. 4); N.L.R.B. v. Preston
Feed Corp., 309 F.2d 346, 349-350 (C.A. 4). Brazell was
discharged not long after Respondent became cognizant
of Brazell's union activity although lawful cause existed
to discharge him before Respondent was cognizant of his
said activity. Thus, Brazell had (a) negligently damaged
a power take-off shaft, (b) was reported by Aetna in-
surance investigators to have traveled at 65 miles an hour
(when Respondent's limit was 54 miles an hour), and (c)
strenously objected to making an afternoon run to Ander-
son, South Carolina (preferring to make it in the even-
ing)." But nothing was done about these shortcomings by
Brazell. It has been held that timing is a factor which may
be considered in ascertaining the true motive prompting
a discharge. N.L.R.B. v. Mira-Pak, 354 F.2d 525 (C.A.
5); Arkansas-Louisiana Gas Company, 142 NLRB 1083,
1085-86.
On this segment of the case I find that Brazell did not
make late deliveries as contended by Respondent. This is
because I find that a.m. on a delivery ticket denotes
delivery any time before noon, and p.m. means delivery
any time prior to midnight, of the date specified on such
ticket. Respondent's contrary evidence is not credited. In
resolving credibility on this branch of the case, I have re-
lied not only on my observation of the witnesses, but also
on the fact (a) that Respondent had no written rule on so
important a condition of employment, i.e., as to Respond-
ent's interpretation of a.m. and p.m., and (b) that Brazell
was neither reprimanded nor warned about a.m. deliv-
eries he made after 8 a.m. but before noon. If material, I
find that Brazell did make some am. deliveries after 8
a.m. but before noon.
4. The manner of Brazell's discharge also carries
probative weight in assessing the legality of Respondent's
conduct. N.L.R.B. v. Associated Naval Architects, 355
F.2d 788, 792 (C.A. 4). Thus, Brazell was discharged
abruptly during the workday as he was awaiting instruc-
tions where to make his next delivery. Cf. N.L.R.B. v.
Lexington Chair Co., 361 F.2d 283 (C.A. 4). A
precipitate discharge of a strong union advocate when his
services were needed is significant . Arkansas-Louisiana
Gas Company, 142 NLRB 1083, 1086; Star Expansion
Industries, 164 NLRB 563. And the courts have com-
mented that "The abruptness of a discharge and its timing
are persuasive evidence as to motivation." N.L.R.B. v.
Montgomery Ward & Co., Inc., 242 F.2d 497,502 (C.A.
2). cert. denied 355 U.S. 829. Accord: N.L.R.B. V.
Stanton Enterprises, Inc., 351 F.2d 261 (C.A.4);
N.L.R.B. v. Lexington Chair Co., supra, at 291 (C.A. 4).
In this connection I have attached no significance to
the fact that President Laney, assistant to the President,
Reddick, and Personnel Manager Price were simultane-
Brazell intentionally misstated facts on his employment application.
Hence, I find that no cause for discharge has been established on this
latter aspect of the case.
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ously present at the West Columbia terminal on
November 28. While this may be suspicious, their
presence there does not warrant an inference that they ar-
rived there for antiunion reasons. Even if they came there
to discuss Brazell , it cannot be said that they were engag-
ing in unlawful conduct . For it is reasonable for an em-
ployer to assemble his supervisors at the place of employ-
ment of an employee whose actions are to be taken under
consideration.
5. I find Respondent did not warn Brazell that his al-
legedly late deliveries or his other misconduct exposed
him to risk of loss of his job. This is significant . Star Ex-
pansion Industries Corporation , 164 NLRB 563. "If the
employer had really been disturbed by the circumstances
it assigned as reasons for' these discharges , and had no
other circumstance in mind , some word of admonition,
some caution that the offending lapse be not repeated, or
some opportunity for correction of the objectionable
practice , would be almost inevitable ." E. Anthony &
Sons, Inc. v . N.L.R.B., 163 F.2d 22, 26-27 (C.A.D.C.).
Accord : El Paso Manor , Inc., 164 NLRB 597.
On this segment of the case there is conflict as to
whether, at the time of his discharge , Brazell was told that
he was terminated only for falsifying his application or
whether other reasons would have been assigned except
that Brazell by his conduct prevented a recitation of these
additional reasons by Personnel Supervisor Price. It is
not necessary to resolve this conflict as I find in any event
that the reasons advanced by the Respondent for
Brazell 's discharge are pretexts . See McCormick Long-
meadow Stone Co., Inc., 155 NLRB 577, 579.
6. Respondent displayed union hostility , as set forth
below (section III , E of this Decision) in the findings that
Respondent committed violations of Section 8(a)(1) of
the Act. This in itself is not an unfair labor practice,
N.L.R.B . v. Covington Motor Co., 344 F. 2d 136, 138
(C.A. 4), for an employer may with impunity dislike
unions and may say so . N.L.R.B. v. Threads , Inc., 308
F.2d 1, 8 (C.A. 4). But such union animus is a "proper
and highly significant " factor which may be considered in
evaluating the reason for an employee ' s discharge.
N.L.R.B . v. Georgia Rug Mill , 308 F . 2d 89 ,91 (C.A. 5).
I find a causal relationship between Respondent's said
animus and the discharge . Cf. N.L.R.B. v. Ac" Comb
Co., 342 F.2d 841, 847 (C.A. 8); McCormick Long-
meadow Stone Co., Inc., 155 NLRB 577.
7. It is not necessary to find that the only reason for
Brazell 's discharge is his union activity . Hence, the fact
that he could have been discharged for cause will not
salvage the discharge as lawful. Filler Products , Inc. v.
N.L.R.B., 376 F.2d 359 (C.A. 4); N.L.R.B. v . Symons
Manufacturing Co., 328 F.2d 835, 837 (C.A. 7). Dis-
crimination need not be the only reason. "... it is suffi-
cient if discrimination is a substantial or motivating
reason , despite the fact that other reasons may exist."
N.L.R.B. v. Whitin Machine Works, 204 F.2d 883, 885
(C.A. 1). Accord: N.L.R.B. v. Lexington Chair Co., 361
F.2d 283 , 295 (C.A. 4). I find that Brazell 's union activi-
ties were a substantial or motivating reason for his
discharge.
E. Concluding Findings and Discussion as to Inter-
ference, Restraint, and Coercion
About November 16, R. E. Reddick, assistant to
Respondent's president, spoke to employee Delmar Hale
against unions . Although much of what Reddick said was
vituperative, it nevertheless amounts to no more than an
expression of opinion attacking unions and, therefore, is
protected free speech under the Constitution as well as
Section 8(c) of the Act. However, in this conversation
Reddick also asked Hale if Hale ever belonged to a union.
This is not an isolated instance as in Converters Gravure
Service, 164 NLRB 397, footnote 5.12 I find this is coer-
cive interrogation since no legitimate purpose for such an
inquiry is disclosed on the record, Johnnie's Poultry Co.,
146 NLRB 770, 774-776, and it is also part of a pattern
of coercive conduct by Respondent. Reddick also asked
Hale "who headed up the Union" and, upon receiving an
answer that no one person did, insisted that there had to
be "one individual." This, too, I find, constitutes unlawful
coercive interrogation condemned by Section 8(a)(1) of
the Act. Reddick's version of the above conversation
with Hale is not credited.
On that same November 16, Terminal Manager
Chewning spoke to employee Hale as recited above in
section III, A of this Decision. I accept Hale's version
and do not credit Chewning's testimony to the extent it is
inconsistent with Hale's. Thus I find that Chewning (a)
promised Hale wage increases would be granted if em-
ployees did not "mess" with the Union, and (b) informed
Hale some employees then working could not qualify for
continued employment if the Union came in . This is coer-
cive under Section 8(a)(1) of the Act, and I so find. But I
find no violation in Chewning's statement to Hale that
Hale "consider about the Union" and that Chewning
could not sleep at night because Chewning worried about
the Union. This is because this statement does no more
than express a point of view and therefore is sanctioned
by Section 8(c) of the Act.
About December 6, Supervisor Reddick spoke to em-
ployee Hale. Although this conversation is not pleaded in
the complaint, it was fully litigated at the hearing. Hence,
I shall pass upon it. Prince Macaroni Co., 138 NLRB
979, 985; New England Web, Inc., 135 NLRB 1019,
1023. 1 accept Hale's version of the talk. But I find that
only part of it is coercive, i.e., Reddick's statement that if
the Union came in Respondent would abolish its guaran-
teed salary plan for the slow season and would instead lay
off employees during the slow season . However, I find no
violation in Reddick's statement that employee
Schumpert was assigned to a new truck because
Schumpert "went along" with Respondent. This result
flows from the fact that Reddick meant that Schumpert
helped out in slack times and, consequently, I find no al-
lusion to the Union was intended in this part of the con-
versation.
Early in November, Terminal Manager Chewning
talked to employee Brazell. First Chewning asked, "who
headed up this union thing?" I find this is coercive. Then
Chewning said he hoped the employees knew what they
12 Even isolated interrogation may be coercive if given in an at-
mosphere of hostility to unions N.L.R.B. v. Lexington Chair Co., 361
F.2d 283, 290 (C.A. 4)
LANEY TANK LINES , INCORPORATED
were doing in deciding to bring in a union. I find this state-
ment is not coercive as I find it is protected free speech.
Then Chewning observed that he and Brazell were
getting too old to look for a job. I find this remark is not
coercive as it does not reasonably imply a threat of
reprisal linked to union activity. Finally, Chewning men-
tioned that the Union had "broken" two companies
where Chewning had been previously employed. I find
this last statement is colorless to depict coercion and,
therefore, it does not violate Section 8(a)(1) of the Act.
About November 18, Terminal Manager Chewning
spoke to employee Joseph E. Collins. I accept the
testimony of Collins on this aspect of the case and reject
that portion of Chewning's testimony not consonant
therewith. Chewning first told Collins that he knew that
Collins signed a card. I find he meant a union card. In ef-
fect this is a question as it reasonably seeks to elicit an
answer as to the accuracy of Chewning's statement. I find
this question is coercive. Then Chewning said that
Respondent might have given the employees a raise but
could not unless they withdrew from the Union. I find
this is a promise of benefit to abandon union activity and
violates Section 8(a)(1) of the Act.
Continuing, Chewning stated he was afraid President
Laney and assistant to the president, Reddick, would
close the West Columbia terminal. I find this implies a
closing if the Union came in and, therefore, I further find
it is a threat of reprisal forbidden by Section 8(a)(1) of the
Act. Then Chewning said that he and an employee
described as Sam were too old, that employee Robertson
did not have any guts, and that none of the three could not
get a decent job elsewhere. I find this statement is not
coercive as it does not reasonably connote or suggest
reprisals in the event the Union came in. Finally,
Chewning mentioned that the brother of Collins (an em-
ployee of Respondent) and driver Rivers lacked the ex-
perience to hold down a union job. I find this is a threat of
reprisal if the Union came in, and, therefore, is forbidden
by Section 8(a)(1) of the Act.
About November 25, Terminal Manager Chewning
asked employee William H. Collins (a) whether Collins
has signed a union card, (b) if Collins "was in on the card
signing," and (c) "who headed up this thing?" I find this
is coercive interrogation which transgresses Section
8(a)(1) of the Act. In this connection, I find that "thing"
in (c) above reasonably refers to the Union because it is
mentioned in the context of a talk centered upon eliciting
information about union activity.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent found to constitute unfair
labor practices in section III, above, occurring in connec-
tion with its operations described in section I, above,
have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices prohibited by Section 8(a)(1) and
(3) of the Act, I shall recommend that Respondent be or-
dered to cease and desist therefrom and that it take
specific affirmative action, as set forth below, designed to
1061
effectuate the policies of the Act. Since the discriminato-
ry discharge of Marvin A. Brazell "goes to the very heart
of the Act" (N.L.R.B. v. Entwistle Manufacturing Com-
pany, 120 F.2d 532, 536 (C.A. 4)), I shall recommend
that the order to be issued be broad enough to safeguard
employees against infringement in any manner of the
rights guaranteed to them by Section 7 of the Act. R & R
Screen Engraving, Inc., 151 NLRB 1579, 1587. As the
record is devoid of any unfair labor practices committed
by Respondent at its terminals other than that involved
herein at West Columbia, South Carolina, I shall also
recommend that notices to be posted by Respondent be
displayed only at said West Columbia terminal.
Having found that Respondent discriminatorily
discharged Marvin A. Brazell, I shall further recommend
that Respondent be ordered to offer him immediate and
full reinstatement to his former position, or one substan-
tially equivalent thereto, without prejudice to his seniori-
ty and other rights and privileges. It will further be recom-
mended that Brazell be made whole for any loss of
earnings suffered by reason of the discrimination against
him. In making Brazell whole, Respondent shall pay to
him a sum of money equal to that which he would have
earned as wages from the date of such discrimination to
the date of reinstatement or a proper offer of reinstate-
ment, as the case may be, less his net earnings during
such period. Such backpay, if any, is to be computed on
a quarterly basis in the manner prescribed by F. W. Wool-
worth Company, 90 NLRB 289, with interest thereon at
6 percent calculated by the formula established in Isis
Plumbing & Heating Company, 138 NLRB 716. It will
also be recommended that Respondent preserve and
make available to the Board or its agents, upon reasona-
ble request, all pertinent records and data necessary to
aid in analyzing and ascertaining whatever backpay may
be due.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. Respondent is an employer within the meaning of
Section 2(2), and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
3. By discriminating in regard to the tenure of employ-
ment of Marvin A. Brazell, thereby discouraging mem-
bership in Local No. 509, a labor organization, Respond-
ent has engaged in unfair labor practices as defined in
Section 8(a)(3) and (1) of the Act.
4. By engaging in the following acts Respondent had
committed unfair labor practices within the meaning of
Section 8(a)(1) of the Act: (a) coercively interrogating
employees concerning their union activities, sympathies,
and desires, and those of other employees; (b) promising
that wage increases would be granted to employees if
they refrained from engaging in union activities or
withdrew from the Union; (c) informing employees that
some of them could not qualify for employment if the
Union became their bargaining representative; (d)
threatening to abolish its guaranteed salary plan if the
Union came in; and (e) threatening to close its West
Columbia, South Carolina, terminal if the Union came in.
5. Respondent has not committed any other unfair
labor practices as alleged in the complaint.
308-926 0-70-68
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
case, I recommend that the National Labor Relations
Board order Respondent, its officers, agents, successors,
and assigns, to:
1. Cease and desist from:
(a) Discouraging membership in the Union, or any
other labor organization, by discharging employees or
otherwise discriminating in any manner in respect to their
tenure of employment or any term or condition of em-
ployment.
(b) Coercively interrogating employees concerning
their and their fellow employees' union activities, sym-
pathies, and desires.
(c) Promising to grant wage increases if employees
refrain from engaging in union activities or withdrew from
the Union.
(d) Informing employees that some of them cannot
qualify for employment with Respondent if the Union
becomes their collective-bargaining representative.
(e) Threatening to abolish its guaranteed salary plan if
the Union comes in.
(f) Threatening to close its West Columbia, South
Carolina, terminal if the Union comes in.
(g) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Marvin A. Brazell immediate and full rein-
statement to his former position or one substantially
equivalent thereto, without prejudice to his seniority and
other rights and privileges previously enjoyed by him, and
make him whole for any loss of pay he may have suffered
by reason of the discrimination against him, with interest
thereon at the rate of 6 percent.
(b) Notify Marvin A. Brazell if presently serving in the
Armed Forces of the United States of his right to rein-
statement upon application in accordance with the Selec-
tive Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the Armed
Forces_
(c) Preserve and, upon reasonable request, make
available to the Board or its agents, for examination and
copying, all payroll records and reports and all other
records necessary to ascertain the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its Lexington or West Columbia, South
Carolina, terminal , copies of the attached notice marked
"Appendix." 13 Copies of said notice, to be furnished by
the Regional Director for Region 11, after being duly
signed by a authorized representative of Respondent,
shall be posted by it immediately upon receipt thereof and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily displayed. Reasonable steps
shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 11, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.14
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found herein.
11 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
11 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Respond-
ent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT discourage membership in General
Drivers, Warehousemen & Helpers Local Union
No. 509, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, or any other labor organization,
by discharging any of our employees. Nor will we
discourage membership in said Local No. 509 or any
other labor organization by discriminating against
any of our employees in regard to their hire, tenure
of employment, or any term or condition of their em-
ployment.
WE WILL NOT coercively ask employees questions
about their union activities, sympathies, and desires,
or those of other employees.
WE WILL NOT promise to grant wage increases if
employees refrain from engaging in union activities
or withdraw from said Local No. 509.
WE WILL NOT inform employees that some em-
ployees can not qualify for employment with us if
said Local No. 509 becomes their collective-bargain-
ing representative.
WE WILL NOT threaten to abolish our guaranteed
salary plan or to close our West Columbia, South
Carolina, terminal if said Local No. 509 is selected
to represent the employees at said terminal.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
the rights guaranteed to them by Section 7 of the Act.
WE WILL offer to Marvin A. Brazell immediate
and full reinstatement to his former position or one
substantially equivalent thereto, without prejudice to-
his seniority and other rights and privileges previ-
ously enjoyed by him. We will also pay him whatever
loss of pay he may have suffered as a result of his
discharge by us, with interest thereon at 6 percent
per annum.
All our employees are free to become, remain, or
refrain from becoming or remaining, members of the
above-named Local No. 509 or any other labor organiza-
tion.
LANEY TANK LINES, INCORPORATED
(Employer)
Dated By
(Representative) (Title)
LANEY TANK LINES , INCORPORATED 1063
NOTE: We will notify Marvin A. Brazell if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1624
Wachovia Building, 301 North Main Street, Winston-
Salem, North Carolina 27101, Telephone 723-2911, ext.
392.