Lewis & Holmes Motor Freight Corp.

National Labor Relations Board - Board Decisions

Sep 20, 1945

63 N.L.R.B. 996 (N.L.R.B. 1945)

In the Matter of LEwIs & HOLMES MOTOR FREIGHT CORPORATION'
and INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN & HELPERS, LOCAL UNION #71, AFL
Case No. 5-C-1781.-Decided September 00, 1941,5
DECISION
AND
ORDER
On March 27, 1945, the Trial Examiner issued his Intermediate Re-
port in the above-entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the respondent filed exceptions to the
Intermediate Report and a supporting brief. On August 9, 1945, the
Board heard oral argument at Washington, D. C. The respondent
and the Union participated in the argument.
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 Inter-
mediate Report, the exceptions and brief filed by the respondent, and
the entire record in the case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner, except as herein-
after modified.
1. The respondent argues that the fact that it promoted James M.
King 2 after the incidents of May 22 and 23, 1944, which afforded the
respondent knowledge of the union activities of King, is incompatible
with the Trial Examiner's finding that King's union activities
motivated the respondent- in subsequently discharging King. The
respondent asserts that King was discharged because he was a reck-
less driver and, as proof thereof, relies upon testimony of Superin-
tendent Cook and Terminal Manager Blackwelder that Cook, Main-
1 Referred to in the complaint as Lewis and Holmes Motor Freight Corporation.
5 King worked for the respondent as an "extra board" driver and "city pick-up and de-
livery" driver until shortly before his discharge on June 10 , 1944, when he was transferred
to "a regular run" as a driver operating between Charlotte, North Carolina, and Atlanta,
Georgia.
63 N. L. R. B., No. 157.
996
LEWIS & HOLMES MOTOR FREIGHT CORPORATION 997
tenance Superintendent Meyers, and the respondent' s insurance
carrier had complained of recklessness on the part of King. Black-
welder further testified that on May 23, he discussed with King reports
of complaints against King's driving 3 The respondent's later pro-
motion of King is indicative of the fact that his driving was considered
by the respondent to be satisfactory despite complaints that may have
been lodged against him. The record does not disclose that King's
driving degenerated in any substantial degree after his promotion 4
nor was King informed at the, time of his discharge that he was being
penalized for reckless driving. Rather, King was informed that.'he
was discharged for speeding; yet, Driver Ballard, a non-union man
who had been guilty of speeding more often than King, was not dis-
charged. These facts, the variance in the respondent's attempts in
this proceeding to explain the discharge of King from the explanation
given King at the time of his discharge, and the fact that Blackwelder
gave to King a recommendation, citing his reliability as a driver of
heavy-duty equipment, indicate that the character of King's driving
was not the cause of his discharge. In view of the fact that King par-
ticipated in the union discussion of May 22, that all three pro-union
participants in that discussion were subsequently discharged and the
only non-union participant therein was not discharged,5 and that the
respondent has presented no credible reason for the discharge of King,
we are convinced and find that, despite its promotion of King after
it was apprised of his union activities, the respondent was motivated
by King's union activities in discharging him. An additional fact
which we have considered in arriving at our conclusion is Black-
welder's admission to Bowers at the time of his discharge, that union
activities, and not inefficiency, was the reason for the discharge of
Woods and Bowers.
2. The Trial Examiner states that Blackwelder could not recall
in his testimony any definite dereliction of duty that he had ever
called to the attention of Bowers prior to his discharge. The record
shows that Blackwelder testified that he told Bowers of two instances
in which he erroneously allowed- freight to pass Charlotte, and of
'Blackwelder testified that hs twice cautioned King against careless driving and that
one of these occasions was on May 23. Blackwelder did not indicate in his testimony as
to when the other occasion occurred . King testified that on May 23 Blackwelder talked
to King about the Union but that no other subject was discussed, and denied that he was
reprimanded for speeding prior to notification of discharge . We credit Blackwelder ' s testi-
mnony that he talked to King about reports of complaints against King on or about May 2.3.
' Although Cook testified that he observed King racing another truck , lie did not testify
whether the incident occurred before or after the promotion . According to Blackwelder,
Meyers complained to Blackwelder just prior to the discharge of King that King side-
swiped another car and had broken a rear -view mirror.
5 Except for woods' testimony that Blackwelder told woods that an unnamed non-union
man was also being discharged , there is nothing in the record to show that any one other
than Bowers , Woods, and King were discharged at the Charlotte Terminal during the
so-called "house-cleaning ' period , and we so find
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
another instance in which tires were lost as a result of Bower's alleged
failure to secure the doors of a truck. However, Bowers denied that
Blackwelder had ever informed Bowers that he was responsible for
the freight shipment errors. We have considered Blackwelder's testi-
mony and we find, as did the Trial Examiner, that the respondent did
not discharge Bowers because of any dereliction in duty.
3. In the Intermediate Report, Section III, B, fourteenth paragraph,
the Trial Examiner refers inadvertently to Cook as a dischargee. The
name "Woods" was obviously intended. We hereby correct the Inter-
mediate Report in this respect.
The remedy
Having found that the respondent has violated Section 8 (1) and
(3) of the Act, we will order the respondent, pursuant to the mandate
of Section 10 (c), to cease and desist from engaging in any unfair
labor practices. We predicate our cease and desist order upon the
following findings : The respondent's conduct in warning Bowers and
Woods that engaging in union activity would get them into trouble,
in questioning King about his union activity, and finally, in discrim-
inatorily discharging Bowers, Woods, and King because of their
membership in and organizational efforts on behalf of'the"Union,
disclose a purpose to defeat self-organization and its objects., Be-
cause of the respondent's unlawful conduct and its underlying pur-
pose, we are convinced that the unfair labor practices found are per-
suasively related to the other unfair labor practices proscribed and
that danger of their commission in the future is to be anticipated from
the respondent's conduct in the past.7 The preventive purpose of the
Act will be thwarted unless our order is coextensive with the threat.
In order, therefore, to make more effective the interdependent guaran-
tees of Section 7, to prevent a recurrence of unfair labor practices,
and thereby minimize industrial strife which burdens. and, obstructs
commerce and thus effectuate the policies of the Act, we, shall order
the respondent to cease and desist. from in any manner infringing
upon the rights guaranteed in Section 7 of the Act.
Since we have found that Ira W. Bowero, George A. Woods and
James M. King were unlawfully discharged by the respondent, we
shall order the respondent to offer them immediate reinstatement to
their former or substantially. equivalent positions, or, to any other
9 See N L R. B v Entwistle Manufacturing Company , 120 F . ( 2d) 532, 536 , wherein
the Circuit Court of Appeals for the Fourth Circuit stated that the "discriminatory dis-
charge of an employee . . goes to the very heart of the Act ." See also N. L. R. B. v.
Automotive Maintenance Machinery Company , 116 F . ( 2d) 350, in which the Circuit Court
of Appeals for the Seventh Circuit observed . "No more effective form of intimidation nor
one more violative of the N L. R. Act can be conceived than discharge of an employee
because he joined a Union. . . .
' See N . L R B v . Express Publishing Company, 312 U. S 426
LEWIS & HOLMES MOTOR FREIGHT CORPORATION 999
available positions for which they are qualified,' without prejudice to
their seniority and other rights and privileges. Since it appears that
the respondent has reduced its operations and that all positions with
the respondent are presently filled by employees having greater senior-
ity than that of Bowers, Woods, or King, we shall further order that,
in the event that there are no positions available for which they are
qualified, their names shall be placed on a preferential list and that
they thereafter shall be offered employment in any positions for which
they are qualified, as such employment becomes available and before
other persons are hired for such work; and that if the position of ware-
houseman at the Charlotte Terminal is revived, Bowers and Woods,
in order of their seniority, shall be offered immediate employment in
that capacity. We shall also order the respondent to make whole
Bowers, Woods, and King for any loss of pay that they may have
suffered by reason°of their discharge, by payment to each of them of
a sum of money equal to the amount which he normally would have
earned as wages from the date of his discharge to the date of the offer
of reinstatement or placement upon the preferential list as provided
above, less his net earnings during said period.
Nothing in our order hereinafter set forth requiring the reinstate-
ment of James M. King, found herein to have been unlawfully dis-
charged, shall be construed to preclude the respondent from discharg-
ing or otherwise disciplining King, in the event of any future miscon-
duct on his part, for any reason other than his union membership or
concerted activities.-
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Lewis & Holmes Motor
Freight Corporation, High Point, North Carolina, and its officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union
#71, affiliated with the American Federation of Labor, or in any other
labor organization of its employees, by discriminatorily discharging
or refusing to reinstate any of its employees, or by discriminating in
any other manner in regard to their hire or tenure of employment or
any term or condition of their employment;
9 Because of the shortage of new equipment and the necessity for repairing the old, the
respondent has reduced its operations and eliminated the position of warehouseman at its
Charlotte Terminal. Since Bowers and Woods have served the respondent as competent
drivers , if the position of driver becomes available before the position of warehouseman
is reestablished by the respondent , the respondent shall offer to Bowers and Woods employ-
ment in the capacity of driver.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to join
or assist the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers, Local Union #71, affiliated with the
American Federation of Labor, or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities, for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Sec-
tion 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Ira W. Bowers, George A. Woods, and Jack M. King,
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other
rights and privileges and, if no such positions are presently available,
place them upon a preferential list and thereafter offer them employ-
ment as it becomes available, in the manner provided hereinabove;
(b) Make whole Ira W. Bowers, George A. Woods, and Jack M.
King for any loss of pay that they may have suffered by reason of the
respondent's discrimination against them, by payment to each of them
of a sum of money equal to the amount which he normally would have
earned as wages during the period from the date of his discharge to
the date of the offer of reinstatement or placement upon the prefer-
ential list as provided hereinabove, less his net earnings during such
period;
(c) Post at its principal office and at each of its terminals, copies
of the notice attached hereto, marked "Appendix A." Copies of said
notice to be furnished by the Regional Director for the Fifth Region
(Baltimore, Maryland), shall, after being duly signed by the respond-
ent's representative, be posted by the- respondent immediately upon
receipt thereof and maintained by it for sixty (60) consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the respondent to insure that said notices are not altered, defaced,
or covered by other material;
(d) Notify the Regional Director for the Fifth Region in writing,
within ten (10) days from the date of this Order, what steps the re-
spondent has taken to comply herewith.
CHAIRMAN PAUL M. HERZOG, dissenting:
To my mind the evidence in support of the complaint, while substan-
tial, is not sufficient.
NLRB 576
(9-1-44)
LEWIS & HOLMES MOTOR FREIGHT CORPORATION 1001
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to A Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers, Local
Union # 71, AFL. or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection.
We will offer to the employees named below immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of pay
suffered as a result of the discrimination. If no such positions are
presently available, we will place them upon a preferential list and
thereafter offer them employment as it becomes available before
other persons are hired for such work; and if the position of ware-
houseman at the Charlotte Terminal is revived, we will offer the
below named Bowers and Woods, in order of their seniority, em-
ployment in that capacity.
Ira W. Bowers
George A. Woods
James M. King
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not dis-
criminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of membership
in or activity on behalf of any such labor organization.
LEwIs & HOLMES MOTOR FREIGHT CORPORATION,
(Employer)
Dated------------------ By-------------------------- --------
(Representative) (Title)
NOTE : Any of the above-named employees presently serving in the
armed forces of the United States will be offered full reinstatement
upon application in accordance with the selective service act after dis-
charge from the armed forces.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 clays from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
George L. Weasler, Esq, of Baltimore, Md., for the Board.
H. D. Campbell, Esq., of Charlotte, N. C, for the Respondent.
Mr. W. Fred Evitt, of Charlotte, N. C., for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed on June 16, 1944, by International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers, Local Union #71, affiliated
with the American Federation of Labor, herein called the Union, the National
Labor Relations Board, herein called the Board, by the Regional Director for the
Fifth Region (Baltimore, Maryland), issued its complaint dated January 20,
1945, against Lewis & Holmes Motor Freight Corporation, herein called the
Respondent, alleging that Respondent had engaged in, and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8 (1) and (3)
and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. Copies of the complaint, the charge, and the notice of
hearing were duly served upon the Respondent and the Union.
With respect to the alleged unfair labor practices, the complaint, in substance,
states that the Respondent: (1) bn or about June 5, 1944, discharged Ira W.
Bowers and George A. Woods, and thereafter refused to reinstate them because'
they joined or assisted the Union or engaged in concerted activities with other
employees of the Respondent for the purposes of collective bargaining of other
mutual aid or protection; (2) since on or about May 1, 1944, and thereafter, (a)
urged, persuaded, and warned its employees to refrain from becoming or remain-
ing members of the Union. (b) made disparaging and derogatory remarks about
labor organizations, their leadership, and purposes, (c) threatened its employees
with discharge and other reprisals if they became or remained members of the
Union, (d) discharged employees under various pretexts because of their mem-
bership in and activity on behalf of the Union, and (e) questioned its employees
concerning their membership in and activities on behalf of the Union; and (3)
by the acts set forth in (1), above, has discriminated in regard to the hire and
tenure of employment of Ira W. Bowers and George A. Woods, and under (2)
above, has discriminated in regard to the hire and tenure of employment of
employees, thereby discouraging membership in the Union, and by all the fore-
going acts, has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act. The Respondent did
not file an answer. It did, however, at the opening of the hearing, state that no
answer would be filed and that the Respondent would proceed upon the basis
of a general denial to each and every allegation of the complaint.
Pursuant to notice, a hearing was held at Charlotte, North Carolina, on
February 12, 14, and 15, 1945, before the undersigned Trial Examiner, James
C. Batten, duly designated by the Chief Trial Examiner. The Board, the Re-
spondent, and the Union were represented. All participated in the hearing.
All parties were afforded full opportunity to be heard, to examine and cross-
examine witnesses , and to introduce evidence bearing on the issues. At the
opening of the hearing, the Board's counsel moved to amend the complaint by
alleging that on or about June 5, 1944, Jack M King was discriuiiiiatorily dis-
LEWIS & HOLMES MOTOR FREIGHT CORPORATION 1003
charged in violation of Section 8 (3) of the Act. The motion was denied.' At
the close of the hearing, the undersigned, without objection, granted the Board's
motion to conform the pleadings to the proof as to minor details. No oral
argument was presented at the conclusion of the taking of testimony. Briefs
were tiled by the Board and the Respondent.
On the entire record thus made and from the undersigned's observation of
the witnesses, the undersigned makes, in addition to the above, the following:
o FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent, Lewis & Holmes Motor Freight Corporation, a North Carolina
corporation, has its principal office and place of business at High Point, North
Carolina, with truck terminals located in Atlanta, Georgia, Charlotte, North
Carolina, and other southern cities. During the year 1944, Respondent trans-
ported in excess of 300,000 tons of freight, all of which was transported in inter-
state commerce. During the same period, its income was in excess of $300.000,
of which more than 95 percent was derived from interstate commerce business.
The Respondent operates under a certificate as a common carrier issued by the
Interstate Commerce Commission'
Respondent admits, for the purposes of this proceeding, that it is engaged in
interstate commerce within the meaning of the Act.
IT. THE ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help-
ers, Local Union No. 71, affiliated with the American Federation of Labor, is a
labor organization and admits to membership employees of the Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
The Respondent, in the operation of its motor freight lines, maintains several
terminals in North and South Carolina and Georgia. At each of these terminals,
there is a manager who is responsible for the operations, including, the hiring
and discharging of employees. The Charlotte terminal, the one involved in this
proceeding, prior to b ebruary 1, 1945, operated 24 hours a day. This terminal,
at all times material herein, because of round the clock operations, from about
6 p. in when the manager left, until S a. in. when he returned, was in charge
of a warehouseman.' The heaviest movement of traffic through Charlotte is
during the time when the terminal is in charge of the warehousemen This
terminal is, also, the most important from the standpoint of general operations
of the lines, for the reason that it is the hub of Respondent's operations, which
radiate in all directions from Charlotte. It is consequently the largest transfer
point on Respondent's lines, although' the Atlanta terminal, not involved
herein, handles a larger volume of freight. Charles R. Cook, with headquarters
in High Point, North Carolina, is the manager of operations, with general super-
' Testimony concerning the discharge of Jack M. King was received under that paragraph
of the complaint, which alleges a violation of Section 8 (1) of the Act and is as follows.
Respondent discharged employees, under various pretexts, because of their membership in
and activities on behalf of the Union
2 The above facts are based upon a stipulation of the parties
'The Respondent at the Charlotte terminal employed two warehousemen, who woiked
respectively from 2 p, in to midnight and 11 . 30 p m to 8 a in
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vision over the terminals and (James D. Blackwelder is the manager of the
Charlotte terminal, with direct supervision of the terminal operations.
The Respondent, prior to the commission of the alleged unfair labor practices
herein, had had a closed shop contract with the Union. For reasons undisclosed
in the record, this contract was not renewed on its termination date. There-
after, the Union remained inactive • up until May 1944, when several of the
employees in the Charlotte terminal began to revive the organization Accord-
ing to the contention of the Board, this activity resulted in the discharge of
Bowers, Woods, and King. The Respondent, on the other hand, asserts that these
individuals were discharged for cause and that their Union membership and
activities were not responsible for the termination of their employment
B Discharge of Bowers, Woods, and King; Interference, restraint, and coercion
The cases of the discharged employees-Bowers, Woods, and King -will be
considered jointly, for the reason that, if they were discharged for their Union
activities, the discriminatory treatment by the Respondent resulted from in-
cidents occurring on May 22 and 23, 1944, in which Bowers, Woods, and King
participated Before so proceeding, however, the undersigned will set forth
the employment history of these employees, and then proceed to a consideration
of the testimony offered by the Board and the Respondent, in support of their
contentions.
Bowers was first employed by the Respondent in the summer of 1942 as a
driver and assigned to a regular run between Charlotte, North Carolina and
Atlanta, Georgia. In the early part of 1943, because of the condition of his
health, he informed Cook that he would like to discontinue working as a driver
Cook then arranged for him to be transferred to the Charlotte terminal as a
warehouseman, this work being less arduous than driving and the hours more
regular. Bowers continued in this job until the late fall of 1943 During this
period of employment as a driver and warehouseman, his work and conduct were
entirely satisfactory to the Respondent Bowers voluntarily ceased his employ-
ment at the Respondent's Charlotte terminal late in the fall of 1943, for a job
with the Associated Transport, Incorporated, as a freight checker in its Char-
lotte terminal' at an increase in wages In the spring of 1944, Cook discussed
with Bowers the possibility of his returning as a warehouseman in the Respond-
ent's Charlotte terminal at an increase in pay, but Bowers explained to Cook that
he preferred not to leave Associated until an indictment then impending against
hum had been cleared up. Shortly after Cook asked Bowers to return the indict-
ment was dismissed, whereupon Bowers immediately got in touch with Cook and
advised him of this fact. On or about April 1, 1944, Bowers returned to the
Respondent's terminal as a warehouseman, working on the 2 p. m to midnight
shift. After Blackwelder left the terminal about 6 p. m, Bowers was responsible
for its proper operation and the making of manifests and bills of lading, and
checking the incoming and outgoing freight, including that to be transferred.
He continued in this job until his discharge on June 5, 1944. It is the latter
period of Bowers' employment, as a warehouseman, that the Respondent contends
was unsatisfactory, resulting in his discharge.
Bowers had been a member of the Union for many years and the Respondent
was aware of this fact.
Woods, who had been working at the Associated Transport, Incorporated, was
told by Bowers in the latter part of March 1944, that the Respondent was in
* Asa freight checker , Bowers was responsible for checking the incoming and outgoing
freight , including the transfer of shipments This type of work is an important element
in the job of a warehouseman.
LEWIS & HOLMES MOTOR FREIGHT CORPORATION 1005
0
need of a city pick-up and delivery driver. Woods went to the Respondent's
Charlotte terminal to apply for the job Manager Blackwelder employed Woods
at wages in excess of those Woods had received at the Associated Woods started
work on or about the first of April 1944, as a driver, and continued in that job
until the latter part of May, when Blackwelder transferred him to a warehouse-
man's job on the 11: 30 p. m to 8 a. in. shift . As a warehouseman, Woods'
responsibilities and duties were similar to those of Bowers, described above.
Woods' services, as a city pick-up and delivery driver, were satisfactory to the
Respondent , and his discharge on June 5, 1944, according to the contention of
the Respondent, was due to his unsatisfactory work as a warehouseman, the job
he was promoted to two (2). weeks before his discharge.
Woods had been a member of the Union for several years and his membership,
at least, during the time Woods was employed by Associated, was known by the
Respondent, because Associated had a closed shop contract with the Union
King was employed by the Respondent as a driver about February 1, 1944, and
worked continuously until June 10, when he was discharged. King worked as
an extra driver and city pick-up and delivery driver until shortly before his
discharge, when he was transferred to a regular run as a driver operating
between Charlotte, North Carolina, and Atlanta, Georgia. King's work was
apparently satisfactory, until his promotion to driver on a regular run.
King joined the Union in the early part of May 1944.
The facts, as testified to by Bowers, Woods, and King, in support of the
Board's contention that these individuals were discharged for discriminatory
reasons, except where otherwise indicated, are uncontroverted, and are here
briefly summarized :
On May 22, 1944, about 11 p m, Bowers , the warehouseman on duty, Woods,
who had come to the terminal to assume his duties as a warehouseman at 11 • 30
p. m., King, who had just arrived at the terminal from Columbia, South Carolina,
and Ballard,' a driver who was awaiting the arrival of a truck from High Point,
North Carolina, before proceeding on his regular run to Atlanta, discussed the
Union and the advisability of joining that organization According to King, he
noticed Bowers and Ballard on the terminal platform and as he joined them,
Bowers told him, "King, you are going back" [to Columbia] King replied, "Well,
I don't mind one more trip to Columbia. I just joined the Union. I think it is a
good thing." As Woods joined the group, King asked Ballard to join the Union.
After some further remarks, in which he complained about "running back and
forth to Columbia," King again asked Ballard to join the Union. At this point
in the discussion, Bowers, Woods, King and Ballard entered into a general dis-
cussion about the Union and "whether we thought it would be better for em-
ployees to belong to the Union or not." According to the testimony of Bowers,
he and Woods expressed themselves as being favorable to the Union, Bowers
stating, "that the drivers would be a lot better off if they belonged to the Union
and that he would sign any of the boys up that wanted to join [the Union]."
Ballard, according to the testimony of Bowers supported by that of King, stated
that, "he didn't belong to the Union, wasn't going to belong to any union, and
that when they had the strike down in Atlanta he carried a gun and fought
against the Union, and if he had it to do ° over again, he would do the same thing "
When Bowers left the terminal at the end of his shift, the truck from High Point
that Ballard had been awaiting before proceeding had not arrived at the Charlotte
terminal.
5 Ballard presently employed by the Respondent , did not testify at the hearing.
There appears in the typed transcript on page 63 , line 3 , a typographical error. It is
ordered that the word "do" be substituted for the word "go" on that page and line
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 23, 1944, at about 11 p in. Blackwelder, who usually left the terminal
around 6 p. in, called Bowers and Woods into his office According to the testi-
mony of Bowers,' Blackwelder told them that that morning he had a telephone
call from Cook in Atlanta, advising him that "two fellows [Bowers and Woods]
in the warehouse that was causing trouble, they were trying to get the boys to
join the Union and wanted him [Blackwelder] to check on it and find out about
it." 8 Blackwelder asked Bowers and Woods what had been said about the
Union Bowers replied that, "we were standing on the platform and had a general
discussion of the Union between King, Ballard, Woods and myself the night
before." Blackwelder then asked Bowers whether he had solicited any of the
employees to join the Union. Blackwelder was told by Bowers that he had not
asked the employees to join the Union but that if any did want to join he would
sign them up Blackwelder then told Bowers that, "he [Blackwelder] didn't
want us to be talking about the Union around there, the Company's policy, they
didn't like the Union and if we kept talking about it we would get in trouble
and so would he." Toward the finish of the conversation, King came into the
office and after having heard Blackwelder make the statement "that they would
get in trouble and he would too," King told Blackwelder, that he King, "must
have been the one that started that." Blackwelder, after Bowers and Woods
left, asked King whether* or not he knew anything about the Union's activities.
King, in reply , told Blackwelder he "didn't know anything about the Union "'
On June 5, 1944, at 2 p. in. when Bowers reported for work, according to his
testimony," Blackwelder called him to one side and told him that, "he [Black-
welder] was going to have to let me go, in a meeting they had in High Point the
previous Saturday that the Company claimed that he would have to let me go
on account of letting some freight go through or about some tires that weren't
sent to Greenville at the proper time," and they told him to let me go." Bowers
then said , "Jim [Blackwelder ] that is not why the Company is firing me, you
know the reason they are firing me is on account of the Union." Blackwelder
replied, "I know but I can't talk ." He then gave Bowers a release and the wages
due him, admitting, according to Bowers that his work was satisfactory . Bowers,
when Blackwelder also told him that he had been instructed to discharge
Woods, "for the same thing," went to the home of Woods, "woke him up,
told him to get up that he was fired , that he could sleep to-night." Woods rode
to the terminal in Bowers ' car. According to the credible testimony of Woods,
Blackwelder called him into the office and told^him•that he was being discharged,
"For letting a truck go through with some freight on it." Woods explained to
Blackwelder that, "that truck had went through when Mr. Bowers dispatched
that truck through, and I [Woods] had nothing to do with it."" Blackwelder
° The findings concerning Blackwelder 's conversation with Bowers and Woods are based
upon the credible testimony of Bowers , supported in many respects, by that of Woods,
King, Blackwelder and Cook
8 Cook testified that Ballard told him upon his arrival at Atlanta that he had been de-
layed in leaving Charlotte because of the Union discussion and "general confusion" at the
Charlotte terminal , and that he then called Blackwelder , to check on the matter
° Blackwelder testified , that during this conversation, he asked King, whether or not he
was a member of the Union.
0 The basis of the finding of fact here, is the credible testimony of Bowers The testi-
mony of Woods, particularly in view of the support given it by Bowers and on several
points by Blackwelder and Cook, was convincing.
11 On this occasion Blackwelder did not mention any particular incident when freight
had gone through . The details of the Respondent ' s reasons for the discharge of Bowers,
Woods, and King are hereafter discussed.
13 Woods testified that this incident occurred about a week prior to his discharge and
that Blackwelder refused to check the records for verification of his statement , Black-
welder said, "lie couldn't help it, that he had orders from High Point to let me go
LEWIS & HOLMES MOTOR FREIGHT CORPORATION 1007
replied, that he "had to let me go any way" ; and added that "he was at High
Point to a meeting on the Saturday before," and , "it was a mess up there." Ac-
cording to Woods, Blackwelder continued by saying that Mr. Cook wouldn't even
attend the meeting that they had. Blackwelder , at that time paid Woods by a
check made out in the main office at High Point and told Woods he "hated to
see us go and any time I needed his help to get a job to call on him."
On June 10, 1944, King who had had a regular run only a week, reported to the
Charlotte terminal and asked Blackwelder which " trailer" he was "pulling" on
the Atlanta run ; Blackwelder then told King, he was fired." Upon inquiry by
King as to the reason , Blackwelder told King that Myers, the maintenance super-
intendent in High Point , had called and instructed him to discharge King for
speeding , although he , Blackwelder , "hated to let me go but he had to do it."
During the conversation , King explained to Blackwelder that the night he, King,
was accused of speeding , he followed Ballard all the way from Atlanta and that,
"I [King] didn ' t see how I could be fired and Ballard keep his job ." King went to
the terminal on the following day and received his pay.
According to the testimony offered by the Respondent , the facts briefly stated,
leading directly to the discharge of Bowers , Woods, and King are as follows :
Blackwelder testified that he had been instructed by the Respondent to
"discharge any of the employees " at the Charlotte terminal or make any changes
"necessary to eliminate the trouble and extra expense that was attributable to
carelessness " He further testified that " the errors and carelessness had all been
made during the time that those two men [Bowers and Woods ] were on duty".
Blackwelder , although he assumes the responsibility for the discharge of Bowers
and Woods , was unable to point to any specific instances of an unusual char-
acter, when , through the carelessness of Bowers and Woods, the Respondent
was caused any "trouble or extra expense " in connection with the operation of
the Charlotte terminal , while these individuals were employed there as ware-
houseinen . Nor could he recall any definite dereliction of duty that he had ever
called to their attention prior to their discharge . In the case of Woods, who
had only been a warehoussnian for 2 weeks , prior to his discharge , Blackwelder
could not recall any specific incident . testifying "I think it probably only happened
once or maybe twice while he was on duty " Blackwelder also testified that
Cook reported to him that Ballard had been delayed at the Charlotte terminal
on May 22, 1944 , because of "Union activities " and a "general confusion" at the
terminal for 1 112 hours; lie admitted that he did not check this matter nor could
he relate any of the circumstances, although Cook had told him to make an
investigation Blackwelder , as well as Cook , testified concerning the filing of
an abnormal number of claims , against the Respondent , purportedly to justify
in some way the discharges of Bowers and Cook However, Cook stated that
he could not say that the situation was chargeable to the Charlotte terminal.
Blackwelder further testified that had he not been called to High Point a few
days before he discharged these individuals, he would not have done so. It is
unnecessary here to review the testimony of Cook with respect to the discharges,
except to say that he gave a variety of reasons for their discharge , and, as in
the case of Blackwelder , although the Respondent 's records were available to
both of them , Cook was unable to give the details of any incidents that would
enable the undersigned to find that Bowers and Woods had failed to measure
up to the responsibilities with which the Respondent charged then, other than
the usual and customary errors and mistakes, occuriing at all terminals and
13 The undersigned accepts as credible King's version of his conversation with Black-
welder on the day of Kung's discharge. Blackwelder testified he discharged King but
Blackwelder did not"give the details of the conversation.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
common in the motor freight business In addition, the Respondent, on August
10, 1944, notified the Board that it became necessary" because of "a fiat refusal
to obey orders relative to their work", to discharge these individuals. At the
hearing the Respondent offered no evidence to support this assertion. Thus
it is clear, that the general character of the testimony of Blackwelder and Cook
and also the Respondent's assertion of numerous reasons to justify the discharge
of Bowers and Woods, casts doubt upon its contention that these individuals
were discharged because their work and conduct was unsatisfactory.
The testimony offered by the Respondent, in support of the discharge of King, is
not convincing As heretofore found, Blackwelder told King he was discharged
for speeding, although the occasion, reported to Blackwelder by Meyers, who
did not testify, was a trip from Atlanta in which King followed immediately
behind Ballard and maintained the same speed, yet Ballard was not discharged
nor is there evidence that he was charged by the Respondent with speeding on
this occasion. Blackwelder testified he was not familiar with King's driving
and could not express an opinion. He (lid, however, give King a letter after
his discharge stating "J M. King tvas employed by the Lewis and Holmes Motor
Freight Corp. for several months as a driver of heavy duty/ equipment [Italics
added]. We found him to be honest, and reliable." While the undersigned
questions how much weight should be given to letters of recommendation, here
Blackwelder testified that King was in fact honest and reliable, and that it was
not his intention in the letter to recommend King's driving, for the reason that
(he) Blackwelder, was not in a position to make such a recommendation The
undersigned is of the opinion that when Blackwelder referred in his letter to
"a driver of heavy duty equipment," a^ being reliable, it clearly indicated that
King's driving was satisfactory. The undersigned is not convinced that King
was a reckless driver, another reason given by Respondent for his discharge, or
that recklessness motivated his discharge. Cook testified that he observed King
on one occasion driving in a reckless manner, but he did not discharge or repri-
mand him nor did he instruct Blackwelder to discharge King He did, however,
according to his testimony report the incident to Meyers" and Blackwelder.
The undersigned rejects the Respondent's contention that King was discharged
for either reckless driving or speeding.
As shown above, the Respondent was aware of the Union activities of Bowers,
Woods, and King on May 22, 1944, and it, through Cook, instructed Blackwelder
to investigate that fact In addition to Cook, the Respondent's officials in High
Point were familiar with the incident. The discharge of Bowers, Woods, and
King, the employees involved in this incident, under= the circumstances above
related, impels the conclusion, and the undersigned finds, that the Respondent
discharged Bowers, Wood, and King because they belonged to and assisted the
Union and that the reasons given by the Respondent were fictitious excuses.
The undersigned further finds that by thus discharging Bowers, Woods, and
King, the Respondent discriminated in regard to their hire and tenure of employ-
ment, thereby discouraging membership in the Union, and by questioning its
employees with respect to their membership in and activities on behalf of the
Union, it has thereby, interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with its operations as described in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the
14 Meyers, maintenance superintendent, did not testify.
LEWIS & HOLMES MOTOR FREIGHT CORPORATION 1009
several States , and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof
V. THE REMEDY
Since the undersigned has found that the Respondent has engaged in unfair
labor practices , he will recommend that the Respondent cease and desist there-
from and take certain affirmative action which the undersigned finds necessary
to effectuate the policies of the Act.
The undersigned has found that the Respondent has discriminated as to the
hire and tenure of employment of Ira W. Bowers, George A. Woods, and Jack
M. King because of their membership in and activities on behalf of the Union.
In order to effectuate the policies of the Act , the undersigned will recommend
that the Respondent offer to Ira W. Bowers , George A. Woods , and Jack M.
King, immediate and complete reinstatement to their former or substantially
equivalent positions , without prejudice to their seniority and other rights and
privileges . 16 The undersigned will further recommend that the Respondent make
Ira W. Bowers , George A. Woods , and Jack M . King whole for any loss of pay
they have suffered by reason of the Respondent ' s discrimination , by payment
to each of them for a sum of money equal to the amount they would have normally
earned as wages from the date of the respective discriminatory treatment
accorded them to the date of the offer of reinstatement , less their net earnings
during that period 19
Upon the basis of the foregoing Findings of Fact and upon the entire record
in the case , the undersigned makes the following:
CoNcLusioNs of LA.-,v
1 International Brotherhood of Teamsters , Chauffeurs , Warehousemen &
Helpers, Local Union #71, affiliated with the American Federation-of Labor,
is a labor organization within the meaning of Section 2 ( 5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Ira W.
Bowers and George A. Woods , thereby discouraging membership in the above
labor organization , the Respondent has engaged in, and is engaging in unfair
labor practices within the meaning of Section 8 ( 3) of the Act , and by dis-
criminating in regard to the hire and tenure of employment of Jack M. King,
thus interfering with, restraining , and coercing its employees the Respondent
has engaged in, and is engaging in unfair labor practices within the meaning
of Section 8 (1) of the Act
3 By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act , Respondent has engaged iit
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
15 The undersigned in making this recommendation , has considered the Respondent's con-
tention that on or about February 1, 1945 , there was a substantial reduction in its opera-
tions resulting in a curtailment of employment . This situation , caused mostly by the
shortage of new equipment and the necessity for repairing the old, appears to be of a tem-
porary rather than a permanent nature and so the undersigned has followed the Board's
customary order for reinstatement
10 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where 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 Amer-
sca, Lumber and Sawmill Workers Union , Local 2590 , 5 N. L R. B 440 Monies received
for work performed upon Federal , State, county , mumcipnl , or other' work -relief projects
shall be considered as earnings See Republic Steel Corporation v. N. L R. B , 311 U. S. 7.
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4 The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
On the basis of the above Findings of Fact and Conclusions of Law, the
undersigned hereby recommends that the Respondent, Lewis & Holmes Motor
Freight Corporation (High Point, North Carolina), its officers, agents, successors,
and assigns , shall :
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, Local Union #71, affiliated
with the American Federation of Labor, or in any other labor organization of
its employees by discriminatorily discharging or refusing to reinstate any of
its employees or in any other manner discriminating in regard to their hire or
tenure of employment or any term or condition of their employment,
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self organization, to join or assist the
International Brotherhood of Teamsters Chauffeurs, Warehousemen & Helpers
of America, Local Union #71, affiliated with the American Federation of Labor,
or any other labor organization, to baigaun collectively through representatives
of their own choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection as guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the Act:
(a) Offer to Ira W. Bowers, George A Woods, and Jack M King, immediate
and full reinstatement to their former or substantially equivalent positions,
without piejudice to their seniority and other i fights and privileges ;
(b) Make whole Ira IV Bowers, George A Woods. and Jack M King, for
any loss of pay which they may have suffered because of the Respondent's discrim-
ination against them, by payment to each of them of a sum of money equal to
that which each of them would normally have earned as wages from the date
of the respective disciiminatorv treatment accorded them to the date of the
Respondent's offer of reinstatement, less their net earnings during such period."
(c) Post at its principal office and at each of its terminals, copies of the notice
attached to the Intermediate Report herein, marked "Appendix A". Copies of
said notice to be furnished by the Regional Director of the Fifth Region (Balti-
enore, Maryland) shall, after being duly signed by the Respondent's representa-
tive, be posted by the Respondent immediately upon receipt thereof in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent'to insure that said notices are
not altered, defaced, or covered by any other material ;
(d) Notify the Regional Director for the Fifth Region in writing within ten
(10) days from the date of this Intermediate Report, what steps Respondent has
taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the Respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the Respondent to take the action
aforesaid.
11 See footnote 16, "supra
LEWIS & HOLMES MOTOR FREIGHT CORPORATION 1011
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3 as amended, effective July 12, 1944,
any party or counsel for the Board may, within fifteen (15) days from the date
of the entry of the order transferring the case to the Board, pursuant to Section 32
of Article II of said Rules and Reglations, file with the Board, Rochambeau
Building, Washington, D C., an original and four copies of a statement in writing
setting forth such exceptions to the Intermediate Report or to any other part of
the record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and four copies of a brief in support thereof.
Immediately upon the filing of such statement of exceptions and/or brief, the
party or counsel for the Board filing the same shall serve a copy thereof upon each
of the other parties and shall file a copy with the Regional Director. As further
provided in said Section 33, should any party desire permission to argue orally
before the Board, request therefor must be made in writing to the Board within
ten (10) days from the date of the order transferring the case to the Board.
JAMES C. BATTEN,
Trial Examiner.
Dated March 27, 1945.
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