Merchants Truck Line, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1977

232 N.L.R.B. 676 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Merchants Truck Line, Inc. and Preston B. Farr and
Virgil Rodgers. Cases 26-CA6277 and 26-CA-
6298
September 30, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On March 16, 1977, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondent a brief
in response.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and finds merit in certain exceptions. Accord-
ingly, it affirms the rulings, findings, and conclusions
of the Administrative Law Judge, as modified herein.
I. The Administrative Law Judge specifically
found that in May 1976 Respondent's vice president,
Paul Kitchens, who did not testify, violated Section
8(a)(l) by threatening Preston Farr, an employee at
Respondent's New Albany, Mississippi, terminal
where its general offices are located, with discharge
because of his union activity. However, as regards a
June 21, 1976, conversation between James Rober-
son, Respondent's secretary-treasurer, and Farr, the
Administrative Law Judge stated that Roberson
interrogated Farr concerning his union activities in
soliciting cards and, after telling Farr that he knew
he had been reported for union soliciting at three
different terminals, ordered Farr to cease all activi-
ties in favor of the Union while he was "on the
clock" or while the other employees were "on the
clock." The Administrative Law Judge agreed with
the General Counsel's contention that this talk by
Roberson to Farr was coercive and that until union
activity started there was no established rule against
solicitation while at work, citing Summit Nursing and
Convalescent Home, Inc., 196 NLRB 769 (1972), and
Florida Steel Corporation, 215 NLRB 97 (1974). We
specifically find that Roberson's questioning of Farr
created the impression of surveillance in violation of
I The General Counsel excepts to the Administrative Law Judge's refusal
to recall Secretary-Treasurer Roberson to testify on rebuttal, and subse-
quently to accept its exhibits of official ICC documents submitted
posthearing, and placed in a rejected exhibit file. We do not reach these
exceptions of the General Counsel inasmuch as we find the four discharges
discriminatory on the record as it stands. In addition, we find it unnecessary
to reach point 3 of the Administrative Law Judge's fn. I concerning the
nonlitigability in this proceeding of exceeding authority granted by the ICC.
232 NLRB No. 107
Section 8(aX)(), and that Respondent promulgated an
overly broad no-solicitation rule after the union
campaign began, without showing that it was
necessary to maintain discipline or production, thus
in violation of Section 8(aX1) of the Act.
In July, as the Administrative Law Judge found,
Farr was discriminatorily suspended for 3 days. On
August 7, President Ben A. Kitchens, who did not
testify, singled out Preston Farr from among a group
of employees and told him that in the future he was
to immediately leave Respondent's terminal upon
completion of his work. When Farr started to leave,
Kitchens then told him that he hoped he did not like
it because Kitchens "would love to" inflict harm
upon him. The Administrative Law Judge did not
discuss this incident as such. However, he did credit
evidence supporting the above alleged violation and
used such evidence in support of his finding that
Respondent violated Section 8(a)(3) by the Farr
suspension. We find that Kitchens' statement to
Farr, who had never before been ordered off the
company premises by Kitchens and, as found by the
Administrative Law Judge, had been a "perfectly
well behaved employee throughout his 5 years of
employment," restrained and coerced Farr in viola-
tion of Section 8(aX1) of the Act. Furthermore,
Kitchens' statement to Farr as he was leaving,
threatening physical harm, constituted coercion in
violation of Section 8(a)(1).
2. On or about June 15, 1976, Allen Patterson,
manager of Respondent's Louisville terminal, ques-
tioned William Mayo, a longhaul driver at Louisville
for 9 years, as to when he first heard about the Union
and said he, Patterson, just could not understand
why anybody would want to bring a union into
Respondent's Company, especially the four men,
Rodgers, McCullough, Sanders, and Haggard, whom
Patterson named.
The Administrative Law Judge recited Patterson's
questioning of Mayo but made no finding. We find it
coercive interrogation and also find that Patterson's
statement that he was aware that named employees
had signed cards created the impression of surveil-
lance by Respondent of its Louisville employees in
violation of Section 8(a)(1).
3. Also in June, on or about June 16, Rebecca
Patterson, wife of the terminal manager, engaged
alleged discriminatee Ed McCullough in conversa-
tion as he was leaving the office. She advised him of
We also disavow the Administrative Law Judge's supposition (par. (8) of the
Administrative Law Judge's list of indicia against finding discriminatory
discharges) that union adherents would have been dismissed in any event
because at least 113 employees must have signed cards as a prerequisite to
an election. The four alleged discnminatees signed in May. The petition was
not filed until October 6, and it is as of that date that the presumption of 113
(30 percent) card signers applies.
676
MERCHANTS TRUCK LINE
a pickup he was to make and then sat down to talk
with him, stating that she was surprised at him. She
refused to give an explanation and then asked if he
had any complaints about anything. The Administra-
tive Law Judge did not discuss this testimony or
make any finding as to it, though alleged in the
complaint. We find that Rebecca Patterson is an
agent of Respondent because she enjoys a special
relationship with the Employer at this terminal, as
evidenced by the fact that she is the wife of Terminal
Manager Alan Patterson, is allowed to work as it
suits her convenience and to write in her time as
opposed to punching the timeclock, assigns pickup
work and delivery work to drivers, and figures their
hours for submission to New Albany. We find that
Rebecca Patterson's comment of surprise at McCul-
lough and her invitation to discuss his "problems" or
grievances during the campaign constituted coercive
interrogation in violation of Section 8(a)(1) of the
Act.2
4. The Administrative Law Judge found that the
announcing of a new bidding system and an
unprecedented sick leave benefit in Respondent's
June 30, 1976, letter had an illegally coercive effect
upon the employees but that the wage increases of
July and August mentioned in the same letter were
not illegal. We disagree.
In dismissing the two $5 weekly wage increases
announced June 30 for payment in July and
September, the Administrative Law Judge found "an
established practice of the Respondent to grant such
wage increases from time to time over the years" and
concluded that the timing of the announced increases
was not as significant as the novel sick leave benefits,
stating that if the raises had been announced in
August or September 1976, as the General Counsel
said they had been in prior years, they would have
been much closer to the time of "open" union
activity. 3
The evidence indicates that the Respondent had no
established pattern of granting raises in the past.
Most were for $5; two were for $10. No seasonal
pattern, or pattern by specific month, appears. The
Respondent contends that raises were given when the
Company had a good year; 1976 being a relatively
good one. 4 However, we find that Respondent's
system of granting raises was, at best, arbitrary and
in view of Respondent's clear union hostility, as set
forth herein, its explanation does not negate the
inference that the announcement was made for the
purposes of enticing employees to oppose the Union.
2 See Sprouse-Reitz Co., Inc., 199 NLRB 943, fn. 2 (1972).
3 The election petition was filed in October, as the Administrative Law
Judge reiterated.
4 The 1976 raises exceeded the combined total of the two previous years'
raises. They totaled $25; earlier totals by year were: $10 for 1975 (in one
raise); $10 for 1974; and $10 for 1973.
See Adams Automation & Manufacturing Company,
218 NLRB 1255, 1258 (1975). In addition, the timing
of two raises so closely coordinated with the previous
antiunion activity in May and June confirms the
antiunion motive in announcing them, as well as the
other two significant benefits.
5. There remains for consideration the late June
discharges of four drivers at the Louisville, Mississip-
pi, terminal: Haggard, Rodgers, 5 Sanders, and
McCullough. The Administrative Law Judge's dis-
missals of the 8(a)(3) allegations based upon these
discharges fail to give proper weight to the timing of
the discharges during a campaign already strenuous-
ly opposed by the Respondent, though in its early
stages. The four card signers at this terminal were let
go shortly after comment by their terminal manager
concerning their having signed cards and "their
wanting to bring in a union."
The Administrative Law Judge viewed the cam-
paign as extending from May to October, though the
election was not held until December, and in that
time frame assessed the postponement to late June of
an asserted earlier management decision to reduce
the number of employees at Louisville. Testimony
for Respondent placed the basic decision as a year
earlier than final merger approval by the Interstate
Commerce Commission. The Administrative Law
Judge saw nothing significant with respect to the
organizational campaign as of "June or June 30." As
he analyzed it, the "first overt act" was the filing of
the petition in October. Thus, the Administrative
Law Judge accepted Respondent's timing of the
discharges as based upon a finalized operational
decision, relying upon testimony-even though he
found it "conclusionary" - that there was a lessened
need for pickup and delivery work at Louisville as of
the June 30 merger date. Testimony that route
changes made under temporary Interstate Commerce
Commission authority, if later required to be can-
celed for lack of permanent authority "could be of
great inconvenience," he found "persuasive on its
face." The latter was "unassailed" on the record and
the former not disproved by business records
obtained by subpena. In general, his analysis draws
heavily upon Respondent's defense, including mone-
tary savings, low seniority of those discharged at
Louisville, and generosity in paying discharge vaca-
tion and severance pay.
Viewing the union campaign as a whole, it is
notable that the bulk of the threats and coercive
interrogation by Respondent was attributable to
5 Rodgers, who had the most seniority. was reemployed on December 29,
1976. This was after the Union lost the election held December 9 and 10,
and shortly before the reopening of the hearing in this case on January 4,
1977
677
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's president and vice president, Ben and
Paul Kitchens, neither of whom testified. Preston
Farr was their first target. Farr was a longhaul driver
who worked out of New Albany where Merchants'
general office is located. On or about May 1, Farr
visited the union office, and then started organizing
by making house calls and talking with employees at
other terminals. On May 19, Farr was threatened by
Respondent's vice president with discharge "before it
was over" and was berated for doing what he was
doing. The Administrative Law Judge found this
threat of discharge an 8(a)(l) violation. Then, in the
following 5 days, four, who were later discharged at
Louisville, signed cards. These cards dated May 20 to
24 are in evidence.
Soon after, in June, Louisville Manager Patterson
commented to employee Mayo that the four had in
fact signed and that he could not understand why
they wanted to bring in a union. This was, in effect,
credited by the Administrative Law Judge, incident
to finding that Respondent had knowledge of the
union sympathies of the four dischargees, and is
referred to in section 2 of this Decision.
Also, on June 21, Farr was told by Secretary-
Treasurer Roberson that he was known to have
solicited cards at three terminals, and he was ordered
to stop soliciting while he or others were "on the
clock."6 This was a new rule against any solicitation
that had not existed before the advent of union
activity. It was found coercive by the Administrative
Law Judge, who described the admonition to Farr as
involving "his widely known union activities in
soliciting cards."
On June 25 the four known card signers at
Louisville were discharged; the sole reason given was
the impending merger.7 A fifth employee, the
terminal manager's son, was included, with the result
that the five lowest in seniority at Louisville were
dismissed, young Patterson being second lowest.
On June 30, Respondent addressed the letter
(treated in sec. 4 above) to all employees in the
system announcing benefits for all full-time employ-
ees. These benefits were: (1) two wage increases of $5
a week each, one as of July 5 and one as of August
30; (2) the announcement of "5 work days sick leave
pay" which, if not used, would be paid to employees
in January of the following year, plus elimination of
need for a doctor's certificate to prove sickness; and
6 See sec. I of this Decision. The Administrative Law Judge erroneously
placed this as occurring "the following month," meaning August, in light of
the paragraph immediately preceding. Farr placed it as June 21, the day he
returned from his vacation. Roberson recalled the conversation but testified
that he did not know the date.
7 The Administrative Law Judge speculated that, as three other
employees at Louisville had signed cards during the campaign, "a random
hand free of illegal motive would have picked up at least three unioneers,
and as likely four." However, the record shows that one of the three others,
Rhodes, did not sign a card until June 30: the date when the other two
(3) plans to improve scheduling runs for road drivers
based on length of service, promised in 30 to 45 days.
The final paragraph of the June 30 letter to
employees announced that date as the effective date
of the merger with Mississippi Freight and welcomed
the employees of the latter "into the Merchants
family."s
Thus, in close sequence Respondent threatened to
discharge card solicitor Farr, promulgated a new rule
against solicitation to curtail union activity, dis-
charged the four known card signers at a terminal
with a staff of eight (exclusive of the manager, his
wife, and his son), and impressively increased
employee benefits systemwide.
However, Respondent's campaign to defeat the
Union did not end there, and its continuing efforts in
this direction add dimension to the above efforts. In
July, Respondent's president told employee Coffey,
who had worked at New Albany 6 years and had
been with the Company for 9, that he had beat the
Union before, three or four times, and if he beat it
this time he would fire Coffey, who was rumored to
be pushing it; also that he would "sell the business
and take his million." The Administrative Law Judge
found these threats violative of Section 8(a)(1). They
occurred shortly before Farr's 3-day suspension that
commenced July 11, a suspension found to be 8(a)(3)
discrimination, though ostensibly intended as pun-
ishment of Farr for being sick on a Monday. In
connection with this 8(a)(3) finding, the Administra-
tive Law Judge recited the abusive language of
Respondent's president: "I gave you a job and then
you go behind my back and do me this way." Also
on August 7, as described in section I above,
President Kitchens engaged in 8(a)(l) coercion by
ordering Farr off the premises and endeavoring to
provoke a fight.
On August 10, Respondent again wrote to its
employees, saying that the Teamsters was, after
several years, back again with its old promises.
"Every time in the past Merchants' employees have
refused to sign enough cards or have voted the
Teamsters down." (Emphasis supplied.) The employ-
ees were urged to read the authorization cards
carefully before signing, and to take a look at the
Union's record and compare its promises with
Merchants' performance. "Only once in 17 years,
and that was during the worst business recession
(Mayo and Clark) signed does not appear. Patterson was asked only if he
had knowledge of other signers "in 1976."
s According to Secretary-Treasurer Roberson, Merchants assumed
control of Mississippi Freight in 1974, when the latter company was on the
verge of bankruptcy. Roberson referred to "a number of changes made at
that time ... many employees that were terminated, a number of them quit
because of transfers that were going to be necessary to bring that truckline
out of a losing proposition .... " There are no specifics on this, but it
seems clear that actual control long preceded the final merger approval.
678
MERCHANTS TRUCK LINE
since the depression, has Merchants failed to give its
people a full work week." (This appears to refer to
1974. See below.) The letter ended with the statement
that there was no need to sign cards in order to work
at Merchants. This letter, of course, is permissible
under Section 8(c). But the sentence emphasizing the
Company's record in providing a full workweek is in
marked contrast to the recent discharges attributed
to the merger, and the refusal to transfer employees
who requested transfer, particularly as the record
shows that in the winter of 1974-75 a 4-day week was
instituted at Louisville when business temporarily
declined there. Layoffs were avoided and Manager
Patterson helped those who wanted to work a fifth
day to get work at a sawmill.
The Administrative Law Judge recounted this
earlier accommodation of the Louisville work force
as a whole. However, he erroneously found that in
1976 none of the four dischargees who were
nonrelatives of management asked Patterson for
assistance in finding work.9 The record contains
specific testimony to the contrary by three of them;
the fourth, Sanders, did not testify. Each of the three
inquired about a transfer to another terminal,
without a success. Driver Mayo's testimony that
there were two "new" men at the Philadelphia
terminal the following January was referred to, but
quickly disposed of by the Administrative Law
Judge's conclusion: "This had nothing to do with
Louisville." But the record shows that whether there
were in fact added employees at Philadelphia had
possible significance: these two Mississippi towns are
only 25 miles apart and Respondent had testified,
and in its brief asserted, that the existence of a night
crew at Philadelphia, but not at Louisville, was a
factor in diverting cargo to Philadelphia and dis-
charging the Louisville employees. The transfers for
which the dischargees asked did not specify a
terminal, and no other terminal was closer to
Louisville than was Philadelphia. 1°
Having in mind the context here of coercive
interrogation, threats, the no-solicitation rule with
the advent of union organizing, the granting of
benefits and the discriminatory suspension of the
foremost employee-organizer, along with threats to
discharge him and the attempt to provoke him to
I Patterson, responding to a question whether any had asked to be
recommended to the sawmill this time (where Patterson's son was again
working), answered: "Not to the sawmill, no sir."
'o The Administrative Law Judge obviously credited Mayo on the issue
of Respondent's knowledge that Rodgers, McCullough, Sanders, and
Haggard were trying to bring in a Union. He did not credit or discredit
Mayo about the new hires at Philadelphia. but simply missed the possible
relevance of that testimony, and he made no reference at all to Mayo's
testimony that, "within the next month or so after" the discharges. "more"
freight was stored at Louisville "in the trailers and on the dock" and
employees there "had more than they could do." As a longhaul driver.
Mayo had occasion to observe staffing and workload at Philadelphia and
Louisville His testimony was not effectively rebutted. Although not in itself
fight in ordering him off the premises-essentially as
found by the Administrative Law Judge-as well as
the disparate treatment of laid-off employees at
Louisville as compared with 1974, it is plain that
support of the Union was the real reason for the four
discharges here litigated. The Administrative Law
Judge viewed these discharges as the major issue but
failed to see significance in their timing. We conclude
the four drivers at Louisville, known to have signed
cards early in the campaign, were selected to stop the
campaign before it progressed too far," as an
example to drivers at the other terminals in the
system of what could happen if they signed cards.
Almost simultaneously Respondent granted substan-
tial wage increases to be effective in the near future 12
and sick benefits and improved bidding procedures,
thus by its unfair labor practices delaying the filing
of the petition until October and contributing to the
overwhelming defeat of the Union in December,
after the hearing in this case began. Thus, we find
that the four drivers were discriminatorily discharged
and Preston Farr discriminatorily suspended in
violation of Section 8(a)(3) and we shall order
reinstatement and backpay for them.
Backpay for the above discriminatees shall be
computed on a quarterly basis in the manner
established by the Board in F. W Woolworth
Company, 90 NLRB 289, 291-294 (1950), with
interest thereon as prescribed by the Board in Florida
Steel Corporation, 231 NLRB 651 (1977). 13
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent
Merchants Truck Line, Inc., New Albany, Mississip-
pi, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Highway and
Local Motor Freight Employees, Local Union No.
667, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization of its
employees, by discharging or suspending employees
decisive of the issue, it supports the discriminatory treatment of the four
dischargees, and we credit it.
" Their low seniority at the terminal would normally tend to negate this
conclusion. Here, as the economic defense for the layoff is not persuasive on
this record while the intent to stop the Union is, it is fair inference that the
seniority factor was too tempting for the Respondent to ignore multiple
discharges as a technique to slow down the campaign.
12 The Administrative Law Judge noted the saving of "S4.800 per month
in salary" incident to the Louisville discharges. Subject to allowing for an
unknown number of part-time employees, the added cost of the two $5
weekly raises to full-time employees could have amounted to $3,770 a week
in the unit of 377, or as much as $4,500 in the total employee complement.
13 See. generally. Isis Plumbing & Heating Co., 138 NL RB 716 (1962).
679
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of their membership in or activities in favor
of the above-named or any other labor organization.
(b) Threatening to discharge employees; interro-
gating employees concerning their union activities
and creating the impression of surveillance; ordering
employees to cease soliciting union membership
during their total paid hours and attempting to
discourage solicitation by ordering employees off the
premises immediately after work and attempting to
provoke them to fight; granting wage raises, paid sick
leave benefits, and bidding rights in work assign-
ments, all for the purpose of dissuading employees
from their union activities.
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights to self-organization, to form, join, or assist the
above-named labor organization, or any other labor
organization, to bargain collectively through repre-
sentatives of their own choosing and to engage in
other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Make Preston Farr whole for any loss of pay or
any benefits he may have suffered by reason of the
Respondent's discriminatory suspension of him.
(b) Offer Virgil Rodgers, Jimmy Haggard, Ed
McCullough, and Larry Sanders full reinstatement to
their former jobs, discharging if necessary any
employees hired to fill their jobs, or, if their jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights,
and make them whole for any loss of earnings by
reason of their discharge and Respondent's discrimi-
nation against them in the manner set forth in this
Decision.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its place of business, including all
terminals in the State of Mississippi copies of the
attached notice marked "Appendix." 14 Copies of
said notice, on forms provided by the Regional
Director for Region 26, after being duly signed by
Respondent's authorized representatives, shall be
posted by the Respondent 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
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this
Decision, what steps the Respondent has taken to
comply herewith.
14 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in
Highway and Local Motor Freight Employees,
Local Union No. 667, affiliated with Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or in any
other labor organization of our employees, by
discharging or suspending any of our employees
from work because of their membership in or
activities in favor of the above-named or any
other labor organization.
WE WILL NOT threaten to discharge our
employees because of their union activities.
WE WILL NOT interrogate our employees con-
cerning their union activities or the union
activities of fellow employees, or create the
impression of surveillance of those activities.
WE WILL NOT order our employees to discon-
tinue solicitation activities in favor of the Union
while they are on the clock.
WE WILL NOT attempt to discourage union
solicitation by ordering employees off the prem-
ises immediately after work and attempting to
provoke them to fight in so doing.
WE WILL NOT grant improved conditions of
employment, such as wage increases and paid sick
leave benefits, for the purpose of inducing
employees to discontinue union activities.
WE WILL NOT grant seniority privileges in
bidding for truck routes to influence employees
against union activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to join
or assist Highway and Local Motor Freight
Employees, Local Union No. 667, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or
any other labor organization, or to engage in any
other concerted activities for the purpose of
collective bargaining or other mutual aid or
680
MERCHANTS TRUCK LINE
protection, or to refrain from any and all such
activities.
WE WILL offer Virgil Rodgers, Jimmy Haggard,
Ed McCullough, and Larry Sanders full reinstate-
ment to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges and WE WILL make them whole for
any loss of earnings by reason of our discrimina-
tion against them, plus applicable interest.
WE WILL pay Preston Farr for any loss of
earnings he may have suffered as a result of our
discrimination against him, plus applicable inter-
est.
MERCHANTS TRUCK
LINE, INC.
DECISION
STATEMENT OF THE CASE
THOMAS A. RIcci, Administrative Law Judge: A hearing
in this proceeding was held at New Albany, Mississippi, on
December 1, 1976, and on January 4, 5 and 6, 1977, on
complaint of the General Counsel against Merchants
Truck Line, Inc., here called the Respondent or the
Company. The complaint issued on September 30, 1976,
upon separate charges filed by Preston Farr, on August 11,
1976, and by Virgil Rodgers on August 31, 1976. The
principal issue presented is whether the Respondent
unlawfully discharged four employees in violation of
Section 8(a)(3) of the National Labor Relations Act, as
amended, and committed certain independent violations of
Section 8(aX)(I). Briefs were filed by the General Counsel
and by the Respondent.
Upon the entire record and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Merchants Truck Line, Inc., a State of Mississippi
corporation with its home office and principal place of
business in New Albany, Mississippi, is engaged in the
interstate transportation of freight. During the past 12
months it derived gross revenue in excess of $50,000 for
furnishing transportation services directly across state lines
in interstate commerce. I find that the Respondent is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that Highway and Local Motor Freight Employees
Local Union No. 667, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
mII. THE UNFAIR LABOR PRACTICES
The Respondent does a trucking business in and out of
15 terminals in various cities of Mississippi; it uses over-
the-road (longhaul) drivers, pickup and delivery (local or in
and close to the city) drivers, and inside warehousemen in
some locations. It has a total of about 450 employees. On
or about the first of May 1976 some employees started a
movement towards joining Teamsters Local 667; authori-
zation cards were passed around, signatures were solicited,
and, on October 6, 1976, a representation election petition
was filed with the Board. The Regional Director issued a
Direction of Election on November 22, a Board-conducted
election was held on December 10, and the vote was 77 for
and 211 against union representation.
On June 30, 1976, four pickup and delivery drivers
working at the Company's Louisville terminal were
dismissed. All four had signed union authorization cards,
and the terminal manager knew this. The complaint alleges
the discharges were retaliation for the men's prounion
activities, and in each case a violation of Section 8(aX3).
An affirmative defense of discharge for cause is advanced.
The Respondent asserts the layoffs were caused solely by
an economic step justified and timed at that very moment
by concurrent finalization of its merger, as approved by the
Interstate Commerce Commission, with another trucking
company called Mississippi Freight.
Starting on July 13, and for the 2 following days, Preston
Farr, a longhaul driver out of the Respondent's New
Albany terminal, was suspended from work - his direct
request for permission to come to work each of those days
simply refused. Farr was active in the prounion campaign,
and the complaint alleges the denial of work for those 3
days was a discrimination in employment imposed upon
him because of such activities, and therefore a violation of
Section 8(aX3) of the Act. The Respondent simply denies
illegal motive here.
There are also several allegations of coercive statements,
such as grants of improvements in working conditions,
called independent violations of Section 8(a)(1). That
during the organizational campaign Respondent did give
certain raises, did promise certain bonuses, and did
announce changes in conditions of employment to the
advantage of the employees is clear and indeed admitted
by the Respondent. The explanations advanced as to each
of these seemingly timely grants to the employees is one
thing, and they will be considered below. But it does seem
clear the Respondent was opposed to the idea of its
employees having a union, if only because there is
uncontradicted testimony to that effect. There had been
earlier union campaigns and elections which had also
failed to establish any exclusive bargaining agent.
But apart from these allegations of coercive conduct said
to have been directed at the total employee complement
generally, i.e., with no suggestion of animus aimed at any
individual employees, and even the 3-day suspension of
Farr, which at best would require a make-whole remedial
order calling for 3 days' backpay, the major issue litigated
at the hearing involves the outright discharge of the four
men at the end of June. As to these, the issue is best
described as an inference, or a circumstantial evidence
case.
681
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. The 3-day Suspension
On July 11 Farr, a long-haul driver was denied
employment - in effect suspended for 3 full days - and
the suspension is alleged to have been imposed because of
his personal participation in the union campaign. He was a
very active solicitor of union cards, appealing for signa-
tures in person and through the mail; he gathered about 40
signed cards altogether. In May, Paul Kitchens, vice
president of the Company, reminded Farr that at his initial
hiring he had been told to bring "any trouble" he might
have to the vice president, and asked what had Kitchens
done to the employees "to make me do what I was doing."
When Farr explained it was all because of problems on the
job and not enough pay, Kitchens answered the men were
"over paid," and "that he could make it so rough on me I
wouldn't want to work for them." Farr then said he "was
expecting that before I started my union activity," and that
he would take the matter to the "Labor Board when it was
all over," and Kitchens said, "I know that." Paul Kitchens
did not appear as a witness. I credit Farr and find that the
vice president threatened him with discharge because of his
union activity and thereby committed an unfair labor
practice in violation of Section 8(a)(1) of the Act.
Sammy Coffey, 9 years a road driver, testified that
shortly before Farr's suspension Ben Allen Kitchens, the
president of the Company, one day said to him, "What is
this shit I hear about you and Booker [Farr]? . . . and he
said that he had heard the rumor that Booker and I was
pushing the union . . he told me he would let me come to
New Albany and make a road driver out of me ... he told
me he had beat it, I believe it was either three or four
times.... He said he had beat it either three or four
times. ... And he said if he beat it this time, he was going
to fire my ass . ... The only thing I remember is he said I
wouldn't work in union county." He told me he would sell
it and take his million dollars and go to the house with it.
Ben Allen Kitchens also did not testify and I therefore
believe Coffey's testimony. Accordingly, I find that by
interrogating Coffey about his union activities and by
threatening to discharge him because of such activities, the
president of the Company also violated Section 8(a)(l) of
the Act.
The following month James Roberson, another high
official of the corporation, talked to Farr about his now
widely known union activities in soliciting union cards.
After telling the driver he had been reported for talking up
the Union at "three different terminals," Roberson said
Local 667 was not going to tell the Company what wages to
pay, and then ordered Farr to cease all activities in favor of
the Union while he was on the clock or while the other
employees were on the clock. Roberson, as a witness,
recalled this conversation and his instructions to Farr. I
think the testimony of both Farr and Roberson, plus a
document in evidence, does prove Farr was ordered to stop
the union activity when "on the clock," meaning all the
time for which he was paid. There was no established rule
against solicitation while at work, and the idea of stopping
solicitation of any kind never arose until the union
campaign started. I agree with the General Counsel that
this talk by Roberson to Farr was coercive, and a violation
of the statute, because it told the employee that manage-
ment was watching his activities, and because it imposed
too broad an unprecedented limitation upon his right to
self-organization. Summit Nursing and Convalescent Home,
Inc., 196 NLRB 769 (1972); Florida Steel Corporation, 215
NLRB 97 (1974).
For the week of July 12 through 16, Monday through
Friday, Farr was scheduled to start work in the evening,
somewhere between 7:15 and 8:15. He was sick Sunday,
the 11 th, and the next day his wife called the office to say
he could not work that evening because he still did not feel
well. She advised the terminal manager her husband would
call in the next day to say whether he could work Tuesday
evening. At 6 o'clock Tuesday Farr called and after saying
he was coming in on time was passed to Ben Allen
Kitchens on the phone. Kitchens told him, "We will get
somebody to run for you tonight." When Farr said he
needed to work, Kitchens said, "Well, I know you do, but
we got somebody to run for you last night. We can get
somebody to run for you tonight." Farr then asked, "What
about tomorrow night?," and Kitchens came back with:
"Well, I don't care. .. You can come in if you want to,
and if you don't want to, you don't have to." The next day,
Wednesday, Farr called again, ready to work; now
Whitten, the dispatcher, told him no and, when asked why,
said he had no reason. Worried, Farr called again in 10
minutes, to speak to higher officials, but could not contact
anyone. This time the dispatcher told him "you asked for a
reason a while ago when I talked to you . . . all I know is
they told me to give you a couple of days to recuperate."
With this, Farr went directly to the terminal in person,
again offered to work, but the dispatcher would not let
him. After a while, Farr telephoned Ben Allen Kitchens at
his home, and asked exactly what was his status. Kitchens
answered he was not fired, he was not laid off, but "[y]our
status is, until you can get to work on Monday night, we
can do without you. We can get somebody to run your run
for you." When Farr offered to come in the next night,
Thursday, Kitchens said: "You sorry son of a bitch, you
didn't have a job, couldn't get a job. I gave you a job, and
then you go behind my back and do me this away." Farr
had the same experience on Thursday; he came timely and
ready to work but was refused permission. On Friday
evening he resumed his regular schedule.
I find Farr was suspended because of his prounion
activities, and that the discrimination in employment was
therefore a violation of Section 8(a)3). There is no
contradiction of any of the foregoing testimony of clear
animosity against him personally, including the threat of
retaliation preceding the suspension. The only exculpation
suggested by the Respondent is that the reason Farr had
been ill that Sunday was not a nice one, or that he had kept
some company the Company did not like. There is no
evidence to prove any such defamatory insinuation. And
certainly no rational basis was offered as to how the reason
for Farr's indisposition, whatever it may have been, could
have had any relationship with his work duties later when
he was perfectly well. Nor, indeed, is there any indication
he had ever been anything but a perfectly well behaved
employee throughout his 5 years of employment with the
Respondent.
682
MERCHANTS TRUCK LINE
B. The Discharges
There is no direct evidence of illegal motive in the
discharges on June 30 of the four men named in the
complaint. An ICC merger of the Respondent and
Mississippi Freight was first temporarily approved by the
Federal Agency in 1974. From then on the Respondent
operated Mississippi Freight as though it owned it, albeit
keeping all records of operations separate. No one
questioned the assertion at the hearing by the Respondent's
officials that whatever "temporary authority" meant, there
was always the possibility it could be revoked by the ICC,
and that in such event any temporary changes that might
be made in the joint operations by the Respondent would
have to be undone, and the old, separate operations -
terminals, truck routes, and all - would have to be
reestablished. Late in May the ICC ruled the merger would
be final, and it set June 30 as the effective date for formal
and legally binding conclusion to the merger proceeding.
When informed that their services would no longer be
required, each of the four men was told by the terminal
manager that the reason was the now legal finality of the
generally known pending merger. Also, consistent with the
effective date of the final merger order, the Respondent
that very week made certain changes in its routes,
combining some and shortening others - all part and
parcel of its now absolute power to "merge" the trucking
business, and routes, of the two formerly separate compa-
nies.
These facts, of course, are but a limited and selected part
of what appears in the entire record. But while the phrase
"primafacie case" is not normally applied to an affirmative
defense of discharge for just cause advanced by a
respondent in a complaint proceeding before the Board,
these facts, directly related to the now questioned dis-
charges, serve to illustrate why the case in support of the
complaint is an indirect one, or what can properly be called
an inference case. The theory of complaint is that if other
facts, which do exist, and which can reasonably be said to
have at least a possible connection with the discharges, be
considered, the ultimate conclusion must be that the true
reason for the dismissals was other than the one advanced
at the time of the events and at the hearing in this
proceeding. And, of course, the argument then becomes
that the real, hidden reason was implementation of union
animus against the four men in question.
Here, as in all circumstantial evidence cases, there are
facts pointing one way and facts pointing another way. But
what must be kept in mind in Board proceedings is that
when it comes to judging the validity of the final complaint
allegation in an 8(a)(3) case - pinpointed and personal
illegal motive - it is not a matter of weighing the pros
against the cons and finding in favor of where the balance
tilts. The test, instead, is whether the complaint is proved
"by a preponderance of the substantial evidence on the
record as a whole," N.LR.B v. Glenn Raven Silk Mills, Inc.,
203 F.2d 946 (C.A. 4, 1953). And eventually, if the scale is
evenly balanced, there cannot be a positive finding of
illegal conduct.
(I) The indicia in favor of the complaint start with the
fact that all the four men named in the complaint signed
union cards. One of them, Jimmy Haggard, testified he
successfully solicited signatures to four more cards,
although he said he did this away from the plant or from
any terminal where the men worked.
(2) A more important fact is that Alan Patterson,
manager of the Louisville terminal and the man who
selected which of the men there from the total complement
should be dismissed, knew these four had signed union
cards. William Mayo, a longhaul driver, testified that
Patterson one day asked him "when I had heard about the
union, and I told him. . . . Alan said that he just couldn't
understand why anybody would want to bring a union in
Merchants Truck Line, and especially, those four men at
Louisville... that had signed cards .... " When Mayo
asked did Patterson really believe Louisville men had
signed, the manager, still according to Mayo's testimony
said: "Yes, I knew there are . . . Jimmy Gale Haggard,
Virgil Rodgers, Larry Sanders and Ed McCullough signed
a card." Patterson also told Mayo that day: "that if the
men down there had any complaints, he wished they could
come to him .... " Testifying after Mayo, Patterson
admitted the wife of another driver had told him of four
men who had signed in Louisville, but he added that he
knew of others at that terminal who had signed union
cards. In fact, Patterson's knowledge, with respect to these
four particular men, is conceded in the Respondent's brief.
(3) Another fact pointing a finger of suspicion is the
matter of timing. Both Patterson and the Respondent's
secretary-treasurer, James Roberson, said there had been
talk of changing routes many months before June 1976.
Indeed they admitted the very route changes had been
planned and decided upon much earlier. By June the union
campaign was in swing. The fact it waited so long to do
what would have made economic sense even earlier
suggests at least the further possibility of hidden motive. In
fairness, however, it must also be noted that nothing of
moment in the general organizational campaign happened
at that particular time; the union activity ran on from May
through the fall. The first overt act came in October, when
the election petition was filed, so that it cannot be said
June or June 30 had any particular significance.
(4) The General Counsel relies strongly on one other
clear fact that in my considered judgment does not add any
significant weight to the suggested inference of illegal
motive in June 1976. During an 8-week period from the
beginning of December 1974 through the end of the
following January, there was a temporary decline in the
volume of work at this same Louisville terminal. There
were then, as there were a year and a half later, 10 pickup
and delivery men stationed there. In order to spread the
unavoidable short-lived economic hurt equally among all
the terminal employees, and in order to avoid outright
layoff of any of them, it was decided, with the agreement of
the total group, that all of them would work only 4 days
each week, thereby avoiding the otherwise necessary full-
time reduction in force. And everyone in fact took I day
off from work each week. On or about the first week of
February 1975 everybody was back at full-time work. At
that time Patterson, the terminal manager, even helped
those men who so desired to find work during their I day
per week of idleness at a nearby sawmill. Some took
advantage of the opportunity and some did not.
683
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In contrast to what had happened 18 months earlier, in
June 1976 Patterson did not keep everybody on a short
workweek basis and he did not assist the four men named
in the complaint to find work at the sawmill, or anywhere
else. But more indicative of evil than all this, according to
the General Counsel, Patterson did help the fifth man who
was discharged - and who was not mentioned in the
complaint - the one man who can be presumed, perhaps,
not to have signed a union card.
As stated above, it is all like a revolving top. The
reduction in available work in 1976 resulted from what was
a permanent change of operations - a permanent change
of truck routes and therefore of loads to be handled at this
terminal; it was not a condition expected to be short lived.
Moreover, in 1974-75, when 10 production employees
(excluding Rebecca Patterson) went from 5 to 4 days of
work weekly, it meant a 20-percent reduction in work.
When five men were released later, there was a total of 11
pickup and delivery drivers; McCullough, an old Mississip-
pi truck company man still nominally on that company's
payroll, was discharged at the time. This means the volume
of work went down 45 percent, not only 20 percent as the
first time. This also means there would have been only 3
days of work per week for each man had no one been
discharged. Can 10 men be relied on to hold faithfully to
jobs that only provide 3 days of work each week? Next:
None of the four unioneers asked Patterson for assistance
in finding work. Next again: One man asked Patterson, in
the discharge conversation, would he give a good recom-
mendation when the employee sought work elsewhere, and
Patterson agreed to do so. In fact, the discharged employee
gave Patterson's name to a company named Wilson;
Patterson was asked by the prospective employer about the
applicant's desirability; Patterson gave a good recommen-
dation; and the man got the job. And finally, the fifth
employee, the man who presumably did not join the union,
and whom the manager did help find work, is Patterson's
son!
Against all the foregoing, there are unquestioned facts of
record lending support to the asserted defense, certainly
weakening the suggested inference of unlawful purpose
said to arise from the first group of facts.
(I) The Company did make a change in its routes that
very weekend, and the testimony of its officers that the
change was intended to, and in fact did, lessen the need for
pickup and delivery work at the Louisville terminal is
convincing. All sorts of company records were produced
by the Respondent under subpena, but nothing was offered
to give the lie to the conclusionary, it is true, statements of
the managers to this effect.
(2) And it is also a fact that June 30 was the critical
moment when the merger became final and legally safe for
the Respondent. Roberson, of the Company, explained
how under ICC rules temporary permits to merge compa-
nies can be voided. His testimony that route changes made
under temporary decision, if later canceled and switched
back, could be of great inconvenience, is persuasive on its
face, and again unassailed on the record.
(3) Each man was told in the discharge conversation that
the reason was the change of routes occasioned by the two
company merger. McCullough returned several weeks later
to ask Patterson if the union activity was the reason for the
discharge and the manager said not so; this before any
unfair labor practice charges were filed.
(4) A positive monetary saving was effectuated. Rober-
son testified that the shortened routes resulted in a saving
in equipment, gasoline, and repairs. No one questioned this
conclusionary statement. And his repeated testimony that
the changes resulted in a cash saving of about $4,800 per
month in salary is supported by documentary proof, again
not questioned, that no one was hired to replace any of the
five men throughout the next 7 full weeks, and that from
then on through the week ending November 24 only one
man was added to the payroll.
(5) The foregoing statement of facts rests upon summar-
ies received in evidence and taken from the company
payroll records. Several witnesses testified about having
seen employees from other terminals working at Louisville
after the discharges. I do not deem their total testimony
sufficient to give the lie to the payroll records, as the
General Counsel suggested at the hearing. Mayo testified
that at the time of the hearing, in January, there were two
new men at the Philadelphia terminal. This had nothing to
do with Louisville. A longhaul driver, Rhodes, gave
conflicting testimony about seeing employees from other
terminals at Louisville; "a month or a month and a half'
after the layoffs, "two on different occasions," "just before
Christmas, maybe the latter part of November," one of the
occasions being while Louisville people were on vacation.
With the regular company payroll records available for
inspection by the prosecution, I deem this as no more than
normal emergency work incidental to this kind of business.
(6) The selection of employees to be discharged at the
Louisville terminal that day was based strictly upon
seniority. And when the Company for the first time 5
months later had need to add a full-time man at Louisville,
it recalled Rodgers, the first entitled to recall according to
seniority, and a known union card signer.
(7) There were others at the Louisville terminal who had
also signed union cards; among them, according to the
testimony of Mayo, were Mayo, Clark, and Rhodes.
Haggard, also discharged, said he too "understood there
were others who had signed." This means that of the 10
pickup and delivery men at least 7 had signed. The positive
proposition that the remaining two (leaving young Patter-
son out of it for the moment) had not signed, is, of course,
not proved. If the manager knew the identity of some of the
signers, can one be sure he did not also know the names of
others? More, even if in fact only 7 of 10 had signed, and 5
had to go, it means that a random hand, free of illegal
motive, would have picked up at least 3 unioneers, and as
likely 4. But it has been held of old that overt prounionism
does not confer immunity from economic adversity.
(8) About this question of who signed union cards, in its
brief the Respondent points to still another relevant fact,
which, albeit outside the record, nevertheless merits
consideration. At the time of the election in December
there were 377 eligible voters. This means, under fixed
Board rules, that at least 30 percent - or 113 - had signed
authorization cards, else the Board would not have
conducted the election. At the hearing the General Counsel
argued that the Company could have effectuated what
684
MERCHANTS TRUCK LINE
savings it sought by making changes in truck routes other
than the ones it did make. The point here was to maintain
that the Respondent deliberately chose the Louisville
terminal as the place to improve its general operations for
the very reason that it knew the identity of the four men
who had signed cards there.' But the fact is that had it
made a like move elsewhere it probably would have caught
unioneers anyway. If the fact of these four men having
signed, and the fact of the Respondent having fired them,
be taken out of context, one picture emerges. But if all
related facts be considered, the picture of probability
changes.
(9) The Respondent was very generous when it dis-
charged these men. In addition to paying each one, at the
moment of discharge, for the workweek just completed,
and for the prior week - pursuant to the established
practice, it gave each one one check for accrued vacation
time and another check as a 2-week severance pay gift.
There was no established practice of paying severance pay
in this Company. And, from the testimony of McCullough,
a dischargee: "They didn't owe me no vacation at the time,
no, sir." An employer driven by a sense of vengeance
against employees who try to bring a union into the
company does not go out of its way to make such
substantial gifts to departing workmen. Unless it be the
employer who - as in an old Board case - as a parting
gift to an old employee who had instigated the union
movement gave him 30 new Kennedy half dollars. The
Biblical 30 pieces of silver?
All things considered, and suspicion apart, I find the
record evidence insufficient to prove the complaint
allegation that the Respondent discharged these four
employees in violation of Section 8(a)(3) of the Act.
On June 30, 1976, in a letter addressed to all employees,
the Respondent both welcomed the old Mississippi Freight
group into the Merchants Truck Company and announced
two new benefits in the working conditions of the total
group. (I) Beginning of January 1, 1977, all full-time
employees would automatically be entitled to 5 days sick
leave annually, and if they did not use the time during any
I year they would be paid for the 5 days, or any portion
thereof, in cash at the end of the year. (2) On July 5, all
employees would receive a $5 weekly raise, and on August
30, an additional $5 increase.
The sick leave benefit was absolutely unprecedented and
the Respondent's explanation of its timing is totally
unconvincing. It consists of no more than a statement that
the new system is fairer to conscientious employees, and
that the matter had been under consideration for some
I After the close of the heanng. as an obvious afterthought, the General
Counsel for the first time made the assertion that one of the truck route
changes the Respondent did make violated the terms of the merger order
issued by the ICC. After asking to reopen the record. he moved for belated
receipt into evidence of two official documents from the public record files
of the ICC in Memphis. The Respondent filed objections to the proposed
exhibits.
During the hearing a number of official documents relating to the merger
were placed into evidence, but no specific explanation either then or later
has been offered by the General Counsel as to how they help prove the
merits of the complaint. Without clarification, he simply now states the
conclusion that the Respondent never had "authority" to make one of the
two truck routes changes that was first established at the end of June.
I deny the motion to now open the record for receipt of the two further
time. It has long been held that substantive improvements
in conditions of employment timed with organizational
activities known by the employer have an illegally coercive
effect upon the employees. N.LRKB. v. Exchange Parts Co.,
375 U.S. 405 (1964). I therefore find that this announce-
ment of paid sick leave constituted a violation of Section
8(a)(1) of the Act.
As to the two $5 wage increases announced for the
month of July and August, I make no finding of illegality.
It was an established practice of the Respondent to grant
such wage raises from time to time over the years. It gave
three $5 raises in 1973, two $5 raises in 1974, a $10 raise in
1975, and it had already given two $5 raises in 1976, one in
March and another in April. A company official testified in
explanation that some years are financially better than
others for the Company, and that 1976 was a relatively
good one. Here the timing is not as significant as in the
case of the unprecedented sick leave benefit announce-
ment. In his brief the General Counsel says the June 30
announcement of these particular raises came "with advent
of open unionization," and calls attention to the fact that in
prior years raises were given in August or September. But if
the raises had been announced in September they would
have been even closer to the time of "open" union activity,
the filing of the election petition in October. Moreover,
mounting inflation cannot be totally ignored. I do not
think the total picture of this case suffices to prove an
unfair labor practice with respect to these raises.
During this same period the Respondent announced
another change in conditions of employment. Unlike any
time in the past there would now be a bid system for
longhaul drivers. In case of a vacancy at any terminal, or a
desire on the part of any driver to change location.
selection for filling jobs would be based upon a bidding
system where the man holding greatest seniority company-
wide would be preferred. Again, the Respondent says no
more than that the employees had long desired such an
arrangement, that the Company had long planned to make
the change, that it had been studied but not implemented
earlier because a special consultant for over a year had
been too busy on other things. I find this explanation
insufficient to offset the necessary implication to the
drivers that this was a change intended at that particular
time to influence their attitude on the question of the
Union and to dissuade them from favoring the organiza-
tional campaign. I find that the announcement then of the
new bidding system was a further violation of Section
8(a)(l) of the Act.
ICC documents into evidence, and/or I reject the two proposed exhibits. I )
They are not newly discovered evidence. As Government documents of
which any tribunal can take official notice, they were always available to the
General Counsel, particularly in the light of the fact that from first to last all
parties argued their positions from the fact of the merger. (2) Because
official notice may be taken of both documents, there is no necessity for
making them a part of this record. (For possible convenience they had been
placed in the rejected exhibit file.) (3) Whether or not the Respondent
exceeded its ICC authority at any time cannot be litigated and determined
in this proceeding. (4) I do not read the documents already placed In
evidence during the hearing as making it unlawful for the Respondent to
have established the truck route now attacked by the General Counsel, after
June 30, 1976.
685
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, have a close, intimate,
and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
I. By suspending Preston Farr from work the Respon-
dent has engaged in and is engaging in unfair labor
practices in violation of Section 8(aX3) of the Act.
2. By the foregoing conduct, by threatening employees
with discharge because of their union activity, by interro-
gating employees concerning their union activities, by
ordering employees to cease soliciting membership in the
Union at any time or place during their paid hours, by
granting paid sick leave benefits to influence employees in
their union activities, and by granting seniority rights in the
bidding for work assignment, the Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(aX)() of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.]
686