Morrison Motor Freight, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1962

137 N.L.R.B. 933 (N.L.R.B. 1962)

MORRISON MOTOR FREIGHT, INC. 933
(a) Bargain collectively with the above -named labor organization concerning
rates of pay, wages, hours of employment , or other conditions of employment,
and, if an understanding is reached , embody said understanding in a signed agreement.
(b) Post at its place of business , copies of the notice attached hereto marked
"Appendix." 5 Copies of said notice , to be furnished by the Regional Director for
the Fourth Region , shall, after being duly signed by an official representative of the
Respondent , be posted by it immediately upon receipt thereof , and be maintained
by it for 60 consecutive days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted . Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for the Fourth Region , in writing , within 10
days from the date of this Recommended Order, what steps have been taken to
comply herewith.°
15 In the event that this Recommended Order be adopted by the^Board , the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice . In the 'further event that the Board 's Order be enforced by a
decree of a United States Court of Appeals , the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
81n the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT refuse to recognize Upholsterers ' International Union ,of North
America, AFL-CIO, as the representative of our employees in the unit described
below . The bargaining unit is:
All production and maintenance employees employed at our Slatington,
Pennsylvania , plant , exclusive of casual part -time employees and all super-
visors as defined in Section 2(11) of the Act.
WE WILL, upon request, bargain collectively with the above-named labor
organization concerning rates of pay, wages, hours of employment , or other
conditions of employment , and, if an understanding is reached , we will embody
said understanding in a signed agreement.
WE WILL NOT refuse to bargain with said labor organization as the repre-
sentative of our employees in said unit or interfere with , restrain , or coerce
employees in the exercise of the rights guaranteed by Section 7 of the Act,
except to the extent permitted under Section 8(a)(3) of the Act.
NATIONAL SCHOOL SLATE COMPANY,
Employer.
Dated--- ---------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.
Morrison Motor Freight, Inc. and William C. Paul
Morrison Motor Freight , Inc. and Robert C. Gray. Cases Nos.
25-CA-1413-1 and 25-CA-1413-2. June 27, 1962
DECISION AND ORDER
On March 28, 1962, Trial Examiner Sidney D. Goldberg issued
his Intermediate Report in the above-entitled proceeding , finding that
137 NLRB No. 108.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Intermediate
Report attached hereto. Thereafter the Respondent and General
Counsel filed exceptions to the Intermediate Report and supporting
briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Members Rodgers, Fanning, and Brown].
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
Intermediate Report, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings,2 conclusions,' and recom-
mendations of the Trial Examiner as amended herein.'
ORDER
The Board adopts the Recommended Order of the Trial Examiner.
I In its exceptions the Respondent Employer requests a new hearing , contending that
the Trial Examiner's credibility resolutions exhibit it prejudice or bias in favor of the
Charging Parties Upon careful analysis of the entire record , we find nothing in support
of this contention and deny the motion for a new hearing . Peter Kiewst Sons' Co ,
136 NLRB 119.
2 In evaluating the evidence in this case, we have considered the uncontradicted testi-
mony of Respondent ' s treasurer , Duncan, with respect to Morrison's economic condition
prior to the discharge of Paul and Gray As we find that this testimony , even if wholly
credited , would not , in view of the other evidence in the case , support a finding that the
discharges were economically , rather than discriminatorily , motivated , we shall deny the
Respondent ' s motion to reopen the record to introduce documentary evidence to corroborate
Duncan's oral testimony.
i The General Counsel has excepted to the failure of the Trial Examiner to find that
Supervisor Sands' Interrogation of Paul as to whether he and Cray had joined the Union,
and Sands ' statement to Paul , "Why did you boys do that . I was getting ready to
ask for more money for you boys . well, I'm sorry that you did that " each
constituted an independent violation of Section 8(a) (1) of the Act We find merit in these
exceptions, and so find Charlotte Union Bus Station , Inc, et at, 135 NLRB 228.
' In order that the Recommended Order shall reflect the additional 8(a) (1) findings
made herein, paragraph 1(b) is renumbered 1(c) and we shall insert , as paragraph 1(b)
of said Order , the following
Interrogating its employees concerning their union membership in a manner con-
stituting interference , restraint , or coercion within the meaning of Section 8(a) (1)
of the Act, or threatening to withhold economic benefits because of their activities
on behalf of Teamster Local Union No. 135, affiliated with the International Brother-
hood of Teamsters, Chauffeurs , Warehousemen and Helpers of America.
We shall also amend the notice by inserting therein the following,
We WILL NOT interrogate our employees concerning their union membership in a
manner constituting interference , restraint , or coercion within the meaning of Sec-
tion 8 ( a) (1) of the Act , or threaten them with the withholding of economic benefits
because of their activities on behalf of Teamster Local Union No 135, affiliated with
the International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers
of America.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges of unfair labor practices filed July 24, 1961, by William C. Paul
and Robert C. Gray against Morrison Motor Freight , Inc. (herein called Morrison
MORRISON MOTOR FREIGHT, INC. 935
or the Company), the General Counsel of the National Labor Relations Board, by the
Regional Director of the Twenty-fifth Region, issued a consolidated complaint dated
September 7, 1961, alleging that Morrison, by interrogating and threatening the
Charging Parties, had restrained and coerced its employees in violation of Section
8(a) (1) of the National Labor Relations Act (herein called the Act) and, by dis-
charging them for their union activity, had discriminated against them in violation of
Section 8(a)i(1) and (3) thereof.
Respondent answered denying all allegations of the complaint. By written stipu-
lation this answer was, in effect, amended to admit that Respondent was an employer
engaged in commerce and that two of the three officials of Morrison named in the
complaint held supervisory positions as alleged. A hearing was held before Trial
Examiner Sidney D. Goldberg at Anderson, Indiana, on October 23 and 24 and on
November 14, 1961, during which it appeared that Respondent's defenses were that
Messrs. Paul and Gray, during their employment by Morrison, had been supervisors,
not employees within the meaning of the Act, and that their employment was termi-
nated for economic, not discriminatory, reasons. The General Counsel and counsel
for Morrison have filed briefs.
From my consideration of the entire record, including the briefs of counsel, and
for the reasons set forth below, I conclude that Paul and Gray were not supervisors
but were employees within the meaning of the Act, and that Morrison terminated
their employment because of their union activity and thereby violated Section 8(a) (1)
and (3) of the Act.
Upon the entire record,' and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Morrison is an Indiana corporation engaged as an interstate motor carrier of prop-
erty with terminals at Akron, Cleveland, Mansfield, and Warren, Ohio, in the East
and St Louis and Kansas City, Missouri, in the West. It operates pursuant to certifi-
cates issued by the Interstate Commerce Commission and it received, during the past
12 months, more than $50,000 for transporting goods from points within the State
of Ohio to points outside that State. It is conceded, and I find, that Morrison is an
employer engaged in commerce within the meaning of Section 2(6) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamster Local Union No. 135, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Daleville, Indiana, just outside the city of Anderson, is approximately half the dis-
tance between the Cleveland-Akron area and St. Louis and about 8 hours' driving time
from each end of the run. For some time Morrison's drivers had been stopping to
sleep at Travelers' Rest Motel in Daleville. There were, apparently, financial disad-
vantages to Morrison in this arrangement and in an effort to diminish them the Com-
pany, in June 1960, established Daleville as a "relay station" and set up an office a
few feet from the motel. As part of the new establishment certain drivers of Morrison
were "domiciled" at Daleville: that is, they physically resided in the area and regarded
it as their home station. The Daleville drivers usually drove between Daleville and
St. Louis.
To manage the new installation, Morrison transferred Henry Sands from its head
office in Akron. About a week later Sands reported to Mrs. Elsie B. Duncan, vice
president and treasurer of Morrison, that he needed assistance in running the terminal
and the Company authorized him to hire a man. On June 21, 1960, he employed
William Paul as a "dispatcher." At first Paul worked 44 hours per week, weekdays
from 8 am. until 5 p.m. and Sands worked with him. Paul had office experience
but not with motor carriers, and required training. In addition to the clerical work
performed at Daleville and its function with respect to operating personnel, arrange-
'The General Counsel's motion to correct the record at pages 49 and 155 was not
opposed and is granted . Additional corrections of the record, on the Trial Examiner's
motion , have been made.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments were made through the Daleville terminal with a local mechanic to perform
minor and emergency repairs to the equipment.
Two weeks after Paul began working, Sands became ill and was hospitalized in
Muncie. With the assistance of personnel at the Akron and St. Louis terminals,
connected with Daleville by leased telephone lines, Paul managed to operate the
terminal, working 85 hours the first week. The following week Sands was at home
and kept in communication with Paul but Paul again worked 85 hours. After his
week at home Sands suffered a relapse and was hospitalized in Anderson. Paul asked
the home office at Akron for assistance and was authorized to find a helper. He sub-
mitted the name of Robert C. Gray, a longtime friend who was a police officer in
Muncie. After a telephone interview with Mrs. Duncan and the approval of the
Muncie police chief, Gray was hired on July 24, Mrs. Duncan remarking that there
had been trouble with drinking drivers and that Gray's police experience would prove
valuable in that area.
During the first week of Gray's employment Sands was still in the hospital and
Paul and Gray covered the terminal as well as they could. The following week
Sands was out of the hospital and, on his instructions, Paul opened the office at
9 a in. and remained until his work was completed about midnight while Gray
reported at midnight and worked until 6 a.m. Sands was in and out of the office
during that week.
Thereafter, beginning about August 1, 1960, the terminal was operated by these
three men around the clock. Sands assigned to himself the hours from 7 a.m. until
3:30 p.m.; to Paul the hours from 3:30 p.m. until 12:30 a.m ; and to Gray the hours
from 12:30 a.m. until 6:30 a.m. This schedule was in effect until Paul and Gray were
discharged on May 12, 1961.
B. Status of Sands, Paul, and Gray as supervisors
One of Respondent's defenses, as stated above, is that Paul and Gray were super-
visors and, therefore, not "employees" within the meaning of the Act. Respondent,
furthermore, refused to concede that Sands' position was supervisory. Since Respond-
ent's terminal at Daleville was manned only by Sands, Paul, and Gray and their duties
interlocked, it will be practical to consider their several functions together.
On or about August 3, 1960, which was after Sands had returned from his second
hospital stay, after Gray had been hired, and after the Daleville terminal had settled
into the routine it was to retain until May 12, 1961, Business Agent William E. Zion
of Local 135 made an official call at the terminal in connection with the transfer to
Local 135 of the Morrison drivers redomiciled at Daleville. Zion introduced himself
to the two men who appeared to be in charge of the terminal and they introduced
themselves as James Carroll, director of operations for the Morrison system, and
Henry Sands, manager of the Daleville terminal?
Carroll informed Zion that Sands was in complete charge of the terminal, with
control over hiring and firing and having sole authority to deal with the Union's
representatives on grievances.3 Thereafter Sands, and only Sands, represented
Morrison at the terminal level in connection with grievances involving drivers arising
out of Daleville operations.
Within a few days after Zion's first visit, the Daleville drivers (who had transferred
into Local 135) and Morrision agreed upon a dispatch procedure for that terminal
which was embodied in a notice signed by Sands for the Company and which was
(and still is) posted on the bulletin board. For the first 4 or 5 months of the opera-
tion at Daleville, Sands signed disciplinary letters for the Company at Daleville
until that function was taken over by R. C. Taylor, Morrison's labor relations director.
Whenever problems arose during the shifts of Paul and Gray that could not be
resolved by following established company practices or by agreement between the
persons involved, they called Sands at his home and he made the required decisions.
It was also to Sands that Paul and Gray made their requests for salary increases. On
the one occasion when Gray found that two drivers had reported for duty under the
influence of liquor, he telephoned Sands at his home: Sands, after talking to the
drivers, told Gray to send them back to bed and he came to the terminal and dis-
charged them.
On the foregoing facts, I find that Sands represented the Morrison management in
the operation of the Daleville terminal and was a supervisor within the meaning of
Section 2 (11) of the Act.
a Respondent did not controvert this evidence.
a Sands introduced Zion to Paul and, when Zion asked whether Paul had any authority
to speak for the Company on labor problems, Carroll said that only Sands had such
authority.
MORRISON MOTOR FREIGHT, INC. 937
The work of Paul and Gray as "dispatchers" consisted principally of preparing docu-
ments and dispatch sheets for outbound equipment and freight from data supplied
to them on equipment and freight arriving at Daleville either from east or west and
scheduled to proceed to destinations beyond Daleville. Certain advance information
concerning freight westbound from Akron would reach Daleville from the Akron
terminal between 9 p.m. and 11 p.m. and the trucks involved would arrive the follow-
ing day. Similar advance information concerning freight eastbound from St. Louis
would arrive from the St. Louis terminal between 7 and 8 in the evening and those
trucks would arrive at Daleville during the night and early morning. The balance
of the information necessary to complete the dispatch sheets and outgoing documents
would be handed to the dispatcher by the driver on his arrival at Daleville.
The assignment of drivers to take these loads out of Daleville was fixed, as set forth
in the posted "Method of Operation," by seniority among the employees having
"available I C C hours" 4 to reach the destinations of the loads. Assignment of
drivers by Paul and Gray, therefore, required only that they figure the "available"
hours remaining for each of the men, consult the seniority list, and notify the proper
driver in time for him to report for duty. Cases of doubt or dispute were either
settled by the drivers involved or referred to Sands for determination.
Since the stop at Daleville was to enable drivers to sleep after an 8-hour run, an
important part of the dispatcher's work at the "relay station" was to awaken them
in time for their next trip. During the period when Paul and Gray were employed
by Morrison, there were no telephones or signaling devices in the sleeping rooms and
it was part of the dispatchers' work to go from the terminal office to the motel
(about 2,50 feet) to awaken each driver.
In addition to the foregoing duties, Paul and Gray received reports of equipment
breakdowns and relayed the information .to the local mechanic with whom Morrison
had an arrangement covering minor repairs; they initialed tickets for fuel supplied
by the gas station near the terminal; and certified the performance of miscellaneous
tasks by driving personnel. In these areas also, doubtful questions or disputes were
referred to Sands.
On several occasions when extra drivers were needed, Sands instructed Paul or
Gray to call one of the men whose applications for permanent employment with
Morrison had been accepted by Sands and in each of these instances Sands talked
with the extra driver before he began work.
Vice President Duncan, who appears to have had the final say in hiring and firing,
conceded that neither Paul nor Gray had any authority to hire or discharge employees.
There is no credible evidence that either of them made any recommendations with
respect to the hiring, transfer, promotion, or disciplining of any employee or that they
had any authority responsibly to direct the work of any other employee.5 This
authority for the Daleville installation appears to have been in Terminal Manager
Sands, subject to whatever rights of supervision were retained by the head office in
Akron.
Labor Relations Director Taylor, when informed by Local 135 on May 3, 1961, that
it represented Paul and Gray, made no reference to their being "supervisors" but
asked the Union to send him a copy of the standard contract for office employees as
well as the union schedule of wage rates, dues, and fringe benefit payments. It
was not until some time in June, long after the discharge of Paul and Gray and at a
conference with Local 135 concerning their reinstatement, that Taylor first advanced
the theory that they had been supervisors.
On the evidence in this record, I find that Paul and Gray were not "supervisors"
of Morrison but were employees within the meaning of the Act.6
6 Official notice may be taken of the existence of statutes and regulations affecting cer-
tificated motor carriers which are administered by the Interstate Commerce Commission
(49 U.S.C. 304; 49 CFR 195). These regulations limit the length of time a driver may
remain on duty and require the keeping of records concerning each driver's hours of duty
and rest.
Insofar as any testimony by Sands contradicts the foregoing, it is not credited.
Based upon his demeanor on the witness stand, the inconsistencies in his own testimony,
and the conflicts between his testimony and that of other officials of Morrison, I do not
consider him a credible witness.
6 Zone Oil Trucking Corp, 91 NLRB 541 ; Into Transports, Inc, 100 NLRB 272; Gulf
OR Corporation , 100 NLRB 1007, 1010; Yellow Cab, Inc., 131 NLRB 239; of. Webb Fuel
Company, 135 NLRB 309. In each of the cases cited by Respondent on this point there is
an extra element of power or responsibility not present here.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The discharges
The facts attending and immediately preceding the discharges of Paul and Gray
are substantially undisputed:
Paul started to work full time (44 hours) for Morrision for $70 per week and
subsequently was raised to $85 per week. Gray worked "part time" (6 hours per
day, 36 hours per week) for $60. Both men asked Sands several times for pay
increases: each time Sands undertook to discuss the matter with the Akron office and
each time he reported that,the head office had refused the requests.
On or about April 19, 1961, both Paul and Gray executed applications for mem-
bership in Local 135 and authorized the Union to represent them for collective-
bargaining purposes with Morrison. These authorization were referred by the union
president to one of its business agents, Byron Trefts.
On May 3, Trefts telephoned Labor Relations Director Taylor at the Morrison
office in Akron, stated that Local 135 represented the office employees of Morrison at
the Daleville terminal, and requested a meeting with him as soon as possible to
negotiate a contract. Taylor asked whether he could have a copy of the Union's
proposed contract and the wage rates and fringe benefits for these employees 7 and
Trefts agreed to send it to him. Taylor said nothing at this time about Paul and
Gray being supervisors or that the Company was considering laying them off to cut
costs. On May 8, Trefts sent the copy of the proposed contract to Taylor at Akron
and in the letter of transmittal directed his attention to the schedule of wage rates
applicable to Morrison's employees.
In the morning on May 8, Sands, while still at home, called Paul at the terminal,
saying that he had heard that Paul and Gray had joined the Union and asking why
they had done so. When Paul said that he and Gray felt they had to have some
protection against "a man like Ted Robbins," president of Morrison, Sands said he
was sorry they had done so because he was in .the process of asking for more money
for them .8
None of the office employees of Morrison, at any of its terminals, are represented
by a union.
On May 12, President Robbins of Morrison came to the Daleville terminal and
handed Paul -a sealed envelope. Paul read the letter enclosed which was signed by
Labor Relations and Personnel Director Taylor and asked Robbins whether it was
merely a layoff, as the- heading indicated, or a termination of his employment.
Robbins replied that it was a termination.
At the same time Robbins left with Terminal Manager Sands a similar letter ad-
dressed to Gray and Sands called Gray where he was on duty to tell him about it.
Sands had no prior notice that the dispatchers were to be discharged.
When Paul came back the following day to pick up his personal belongings, Ter-
minal Manager Sands, admittedly upset by the termination of Paul and Gray, said
something to the effect that he did not know whether he could operate the terminal
without the two dispatchers. Paul credibly testified that he said: "Don't worry, Pat,
I'll be back in a few days," and that Sands replied: "Well, I don't know, you know
the company will close this office and move it before they'll ever sign union." 9
On June 7 Paul's wife telephoned Mrs. Duncan at her home near Akron and asked
whether her husband's layoff was permanent. Mrs. Duncan said that it was. Mrs.
Paul also testified that Mrs. Duncan told her that the Company had been considering
cutting expenses and, on learning that Paul and Gray had joined the Union, decided
to start cutting by terminating the two men at Daleville. When Mrs. Paul asked why
the men had not been notified in advance that they were to be terminated, Mrs.
Duncan replied that the men had not notified the Company in advance that they were
thinking about joining the Union.io
Since Paul and Gray were discharged the Daleville terminal has been operated by
Sands alone. He works a split shift and various duties previously performed by the
dispatchers, including Sands, have been shifted to the drivers themselves, to the opera-
tor of the gas station adjacent to the terminal, and to other personnel of Morrison.
4 Taylor confirmed this request by letter the same day.
8 Sands denied making this statement but, for the reasons heretofore set forth, his denial
is not credited.
9 Sands was not interrogated concerning this conversation , although he testified more
than 3 weeks after Paul , and this statement stands uncontradicted on the record
is Mrs. Duncan admitted having had a telephone conversation with Mrs. Paul but denied
that these words had been exchanged . I credit Mrs. Paul's statement that this latter
statement was made. The other statement , that the Company decided to start cutting ex-
penses by discharging Paul and Gray when it learned that they had joined the Union, is
dealt with in section III, E, below.
MORRISON MOTOR FREIGHT, INC . 939
The telephone signal system, hereafter discussed, has also been utilized in the opera-
tion of the terminal.
D. Respondent's defense
Respondent contends that its discharge of Paul and Gray was dictated solely by
the economic condition of the Company: that it was losing money and the reduction
of the force at Daleville was part of its effort to reduce expenses.
In support of this defense, Mrs. Duncan testified that for the calendar year 1960
Morrison lost $139,000 "before depreciation"; that by the end of February 1961 "we
still showed a loss of over six thousand dollars." She claimed that at a meeting of
the Company's board of directors in March 1961 it was decided that expenses would
have to be cut and that shortly thereafter she told Terminal Manager Sands that
it would be necessary for him "to cut costs."
The letters notifying Paul and Gray of their discharge refer to "lengthy study
and deliberation on operational changes throughout our system in an effort to
reduce our overhead expenses."
E. Discussion
The determination necessary to be made in this case is whether Respondent's real
reason for the discharge of Paul and Gray was to interfere with employee rights
under the Act and to discourage membership in the Union as charged by the General
Counsel, or was dictated by "economic necessity" as claimed by Respondent." It is
obvious that reliable evidence of Respondent's real reason is more likely to be found
in its deeds and spontaneous statements than in its formal expressions after the fact.
It is also a truism that evidence of a discrinunatory reason is more likely to be cir-
cumstantial than direct.
As stated above, the evidence of the Company's financial condition consists of the
self-serving and generalized testimony of Mrs. Duncan, its vice president and treas-
urer, that for the year 1960 and for the first 2 months of 1961, it suffered operating
losses. While the General Counsel did not controvert this testimony, Respondent
did not support it with a detailed financial statement such as would be expected
to exist in connection with this substantial business enterprise.12 Such detailed state-
ment, with the explanatory notes usually attached, would have been much more
illuminating than this witness' conclusions. For example, Mrs. Duncan testified that
the Company did not lose money in 1959; she also testified that the 75 new trucks
contracted for in October 1959 were delivered during the 2 years between that
date and October 1961, the date of the hearing herein. It follows, therefore, that
a substantial amount of new equipment was delivered during 1960 and a detailed
financial statement might have disclosed a relationship between the operating loss
and possible initial payments on this equipment.13
Mrs. Duncan also testified that, although the Company showed a profit in January
1961, it showed, for the months of January and February, a loss of $6,000.14 This
loss is at the rate of $36,000 per year, only one-third of the alleged loss in 1960.
She admitted that there were profits for "three of four months" in 1961 prior to the
hearing, but insisted that the Company also showed losses. It is to be noted that
there had been a reduction in the force of mechanics at Akron from 26 to 19 (made
"The cases cited by Respondent represent this proposition but all reach the conclusion
that the employer's real reason was one not violative of the Act. Other court cases illus-
trate the same rule but sustain Board findings that the employer's real reason was dis-
criminatory and unlawful. See, for example, N L R B. v Ellis and Watts Products, Inc.,
297 F 2d 576 (C.A. 6) ; N L R.B. v Brown-Dunkin Company, Inc., 287 F. 2d 17 (C A 10) ;
N.L.R.B v. L. C Ferguson, and E. F. Von Seggern d/b/a Shovel Supply Company, 257
F. 2d 88 (CA. 5) ; N.L R B. v. Jones Sausage Co & James Abattoir Co., 257 F. 2d 878
(C.A. 4) ; N L R B. v. C. & J. Camp, Inc., et at. d/b/a Kibler-Camp Phosphate Enterprise,
216 F. 2d 113 (C A. 5).
12 Respondent stipulated that It operates under Interstate Commerce Commission cer-
tificates and regulations. Sections 205 1, 2051a, and 205.3 of the regulations of that
Commission (49 CFR Part 205) require the filing of annual reports in its Bureau of
Transport Economics and Statistics by all certificated motor carriers of property not
later than April 30 following the year of operations. Mrs. Duncan's testimony concerning
the year 1960 was given in October 1961, long after the report pursuant to these regula-
tions was required to be filed.
is Respondent's failure to produce records in support of Mrs Duncan's testimony justi-
fies an inference that the records would not do so (New England Web, Inc., et at., 135
NLRB 1019; Tabulating Card Company, Incorporated, 123 NLRB 62, 73).
14 On this point, also, Respondent did not produce records to support its position and an
inference is justified that they would not do so.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
possible by the delivery of new equipment) as well as other reductions in personnel
by "attrition" and that Mrs. Duncan did not testify that there had been an overall
operating loss for the portion of 1961 prior to the discharges. Since she was Re-
spondent's principal witness on this point, her silence on relevant matters must be
given as much weight as her testimony.
Whether Morrison actually had what could be labeled an "operating loss" in
1960 and for the first 2 months of 1961, as Mrs. Duncan testified, is not an issue
in this proceeding. Respondent's defense is that "economic necessity" required that
Paul and Gray be discharged. These two propositions are not necessarily the same.
The Daleville terminal was established to save money on "lay-over time" and "run-
around time." This was accomplished, in part by making Daleville the "domicile"
of certain drivers and by locating an office at that point where dispatchers could
more effectively utilize the drivers temporarily or permanently there. It is apparent
that the Company expected that this more efficient use of drivers and the consequent
reduction of delays in moving freight and equipment would result in lower costs of
operation. It may be that the "round-the-clock" operation of the Daleville terminal
kept operating losses for the system lower than they would have otherwise been.
It is also not necessary for me to find, as a fact, that there was no discussion,
among the officials of Morrison, of the necessity for saving money wherever possi-
ble-indeed, it would be abnormal for operating officers of a business enterprise not
to discuss this problem. It it notable, however, that despite her testimony that the
Company was trying to cut costs,15 Mrs. Duncan repeatedly testified that, with
the possible exception of mechanics at Akron, there were no discharges of personnel
throughout the Morrison system. Mrs. Duncan's statement to Sands, therefore, that
costs had to be reduced at Daleville might well have referred to more efficient
operation of the terminal. Even if the Company did consider, in its search for
economies, the possibility of reducing the work force at Daleville, the record is
clear that prior to May 3, at least, it had no intention of taking such steps without
Sands' assurance that he could handle the terminal alone-an assurance which he
never gave.
The evidence in this record falls far short of establishing Respondent's defense
that the discharges of Paul and Gray were based upon "economic necessity" and I
find that this was not the reason for these discharges.16
Although she was positive that the only reason for discharging Paul and Gray
was the economic position of the Company, Mrs. Duncan's testimony as to the date
when the decision was made to discharge them is both vague and contradictory: it
ranged from "back in March" through "a couple of weeks before they were actually
laid off" and was finally linked by her with the installation of a telephone signaling
system in the motel to call the drivers. In fixing this last date Mrs. Duncan was
corroborated by Labor Relations and Personnel Director Taylor, who testified that
his determination to lay off Paul and Gray was made as soon as he received word
that the telephone signaling system would be installed in the motel.
With respect to the installation of the telephone system, the record contains clear
evidence from impartial sources. Stacey, the owner of Travelers' Rest Motel, testi-
fied that Sands asked his permission to have a telephone calling system installed
in the eight rooms used by Morrison's drivers; that he agreed on condition that
Morrison pay the cost of installation and that Sands thereupon asked him to com-
municate with the telephone company to find out the cost. Stacey stated that
on that same day he obtained from the telephone company an estimate of the
cost of installing the system and the time needed for the work and that be reported
them to Sands.17 Sands admitted that, when he had been given the approximate
cost of installation, he called Mrs. Duncan to tell her. He also admitted calling
the telephone company to say that his company was a large one and paid large
telephone bills; that he needed the telephones "now" and wanted some service "right
now." Later that same day Henderson, the telephone company's service engineer,
accompanied by his installation foreman, came to the motel and to the Morrison
office, where he spoke with Sands He explained to Sands what the telephone com-
pany could do to solve the problem as be understood it and stated the cost of in-
11 There was no evidence concerning the "lengthy study and deliberation on operational
changes" relied upon in the letters of dismissal
16 Cf Kelly & Picerne, Inc , 131 NLRB 543
17 In her statement given to a Board agent in August 1961 (which she adonted on the
witness stand), Mrs Duncan said that "some months" before the discharge of Paul and
Gray she discussed the installation of the telephones with Stacey In his testimony Stacey
referred to conversations on the subject of installing telephones only with Sands of the
Morrison organization and that those occurred on the day he made his inquiry, reported
the result to Sands, and the telephone service engineer visited the motel. I credit Stacey's
version and reject that of Mrs Duncan
MORRISON MOTOR FREIGHT, INC. 941
stallation and maintenance. Sands asked how soon the system could be installed
and Henderson gave May 16 as the probable date of completion. The official tele-
phone company order for the job, then written up by Henderson, is in evidence: it is
dated May 9, 1961,18 and it shows that the installation was completed on May 12.19
Summing up, the record shows that from August 1960 until May 1961 the Mor-
rison terminal at Daleville was manned by Sands, as manager, and Paul and Gray
as dispatchers and that it operated without outward sign of company disapproval.
On May 3 the union representative notified the Company that it had been desig-
nated as bargaining agent by the dispatchers and requested a meeting to discuss a
contract. Morrison's labor relations director asked for a copy to the Union's
contract proposals and, specifically, for the wage rate. On May 8 the Union sent
Morrison a copy of its standard contract for office employees. On May 9 the Com-
pany made arrangements with the telephone company to install a system for calling
its drivers from the motel and insisted that the work be done as quickly as possible.
The installation was completed on May 12 and on that same day Respondent's
president, without prior notice to the terminal manager, came to Daleville and
personally handed Paul a written notice of discharge, while Sands called Gray to
tell him that he, also, was discharged. These facts persuade me that this was
something other than an employer's reluctant layoff of two "satisfactory" 20 employees
it could no longer afford to keep. In determining what this other "something" was,
in addition to the facts set forth above, Sands' comment to Paul the day following
the discharge is revealing: while the language of his earlier statement to Paul, when
he first learned that they had joined the Union, was based upon his reasonable
assumption that his own failure to produce pay raises had impelled the dispatchers
to join the Union, after the visit of President Robbins on May 12, Sands expressed
confidence that the Company would "close this office and move it before they'll ever
sign union." Sands, it has been found, was a supervisory official of the Company
and, therefore, capable of making admissions binding upon it. President Robbins'
presence at the Daleville terminal the previous day, under the special circumstances
set forth herein, convinces me that Sands' statement was an accurate reflection of
the Company's antiunion bias.21
From the evidence in the record I find as a fact that Respondent discharged
William C. Paul and Robert C. Gray because they had applied for membership in
Local 135 and had designated it as their bargaining agent; that such discharges
were for the purpose of discouraging membership in the Union; and that Respondent
thereby restrained and coerced employees in the exercise of the rights guaranteed
them in Section 7 of the Act. Such conduct violates Section 8(a)(3) and (1) of
the Act.
There remain for consideration the allegations of the complaint that Terminal
Manager Sands, by his statements to Paul on May 8 and 13, and Vice President
Duncan, by her statements through Mrs. Paul on June 7, threatened and coerced
employees in violation of Section 8(a)(1) of the Act. Sands' earlier remarks that
he was sorry the men had joined the Union because he was about to ask for higher
pay for them and,Mrs. Duncan's caustic retort that the employees had not fore-
warned the Company that they were about to join the Union do not, in my opinion,
constitute restraint or coercion within the meaning of Section 8 (a) (1), and I shall
recommend dismissal of the complaint to that extent. Sands' statement to Paul on
May 13, however, that Morrison would close and move the Daleville terminal before
it would "sign union" was, in addition to an admission of Respondent's antiunion
motive in discharging Paul and Gray, a substantial threat by Respondent calculated
and reasonably likely to interfere with, coerce, and restrain its employees 22 in the
exercise of their rights and it was, therefore, in violation of Section 8(a)(1) 23
16 In his affidavit given to a Board agent, Sands stated that he consulted Stacey about
installing the telephones "about 2 weeks before William Paul and Bob Gray were termi-
nated, about in the last week in April" which would have placed it prior to the May 3 call
by Business Agent Trefts. His testimony "three to five days before" contradicts his
affidavit but is in accord with the credible evidence and, on this point, is accepted.
19 Sands' affidavit states that the installation was completed the morning after Paul
and Gray "left," which would have been May 13. I do not credit Sands' statement.
20 So characterized in the letters of dismissal
21 That a substantial interstate motor carrier has recognized the Teamsters as the repre-
sentative of its over-the-road drivers is, today, of slight weight in determining whether
the employer is basically opposed to the exercise of similar rights by other-particularly
office-employees
22 Although discharged the previous day, since such discharge is herein found to be an
unfair labor practice, Paul was still an employee under Section 2(3) of the Act.
23 Ewell Engineering & Contracting Co. Inc., 134 NLRB 540.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mrs. Duncan also denied making the first of the two statements attributed to her
by Mrs. Paul: that the Company was considering cutting expenses and, on learning
that Paul and Gray had joined the Union , decided to start by terminating them. The
fact to be determined at this point is not whether such statement-if made-would
have been truthful but whether such statement was, in fact, made. On his point
the testimony of Mrs. Paul is balanced by the denial of Mrs. Duncan. Although
Mrs. Duncan was an interested witness and I have considered all of her testimony in
the light of that fact , I have made no general finding as to whether she was or was
not a credible witness-not for reasons of chivalry but because I have not found it
necessary to do so. Unlike the comment of Sands to Paul the day following the
discharges , this telephone conversation occurred almost a month thereafter when, as
Taylor's first references to the discharged employees as "supervisors " shows, Re-
spondent had begun to formulate its defense . Not only would this statement by
Mrs. Duncan have constituted restraint and coercion in violation of Section 8(a) (1)
but it would also have been an admission of the major unfair labor practice found
herein . I have the impression that Mrs. Duncan is sufficiently sophisticated in labor
relations to have avoided making it and I do not find that it has been proved by a
preponderance of the evidence . Accordingly , I recommend that this allegation of
the complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that Respondent discriminated in regard to the tenure of employment
of William C. Paul and Robert C. Gray, I will recommend that the Respondent
offer to them immediate and full reinstatement to their former or substantially
equivalent positions , without prejudice to their seniority or other rights and priv-
ileges,24 and make them whole for any loss of earnings they may have suffered by
reason of the Respondent 's discrimination against them by payment to them of a
sum of money to be computed in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289. For the purpose of such computation , I shall
recommend that Respondent preserve and make available to the Board, on request,
the records necessary to facilitate the determination of the amount due under this
recommended remedy.
Having also found that, by Terminal Manager Sands' May 13 statement to Paul
that the Company would close and move the Daleville terminal rather than sign a
contract with a union, Respondent interfered with, restrained , and coerced its em-
ployees in the exercise of rights guaranteed in Section 7 of the Act and thereby
violated Section 8(a)(1) thereof, I shall recommend that it cease and desist
therefrom.
In view of the nature of the unfair labor practices herein found , I am convinced
that the commission of other unfair labor practices by Respondent reasonably may
be anticipated. I will therefore further recommend that Respondent be ordered to
cease and desist from interfering in any other manner with the exercise of the rights
guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Morrison Motor Freight, Inc., is an employer engaged in commerce within
the meaning of Section 2(6) of the Act.
u There has been no discontinuance of any function or department of Respondent's
activities and the duties performed by the discharged dispatchers ( with the exception of
the walks to the motel to awaken the drivers ) are being performed by others on behalf
of Respondent.
MORRISON MOTOR FREIGHT, INC. 943
2. Teamster Local Union No. 135, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the tenure of employment of William C. Paul
and Robert C. Gray to discourage membership in the said labor organization, Re-
spondent has engaged in unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
4. By threatening to close the Daleville terminal rather than sign a contract with
a union , Respondent has engaged in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the Respondent, Morrison
Motor Freight, Inc., its officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Teamster Local Union No. 135, affiliated with
The International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America , or any other labor organization of its employees , by 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
employment.
(b) Threatening to close its Daleville terminal rather than permit its employees
there to become and remain members of Teamster Local Union No. 135, affiliated
with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization, or in any other manner inter-
fering with, restraining, or coercing its employees in the exercise of the right to self-
organization , to form labor organizations, to join or assist the Union 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 bargain-
ing or other mutual aid or protection, or to refrain from any or all such activities.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Offer to William C. Paul and Robert C. Gray immediate and full reinstate-
ment to their former or substantially equivalent positions and make them whole for
any loss of earnings suffered, in the manner set forth herein in the section of the
Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to or con-
venient for a computation of the amount of backpay due under the terms of this
recommendation.
(c) Post at its offices and terminals in Akron , Ohio, and Daleville, Indiana, copies
of the notice attached hereto marked "Appendix ." 25 Copies of this notice, to be
furnished by the Regional Director for the Twenty-fifth Region, shall, after being
duly signed by Respondent, be posted immediately upon receipt thereof, and be main-
tained for a period of 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that such notices are not altered, defaced,
or covered by other material.
(d) Notify said Regional Director, in writing, within 20 days from the date of
receipt of this Intermediate Report and Recommended Order, what steps Respondent
has taken to comply herewith.26
25 In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice . In the further event that the Board 's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
A In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith."
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL offer to William C . Paul and Robert C. Gray immediate and full
reinstatement to their former or substantially equivalent positions , without
prejudice to their seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay he suffered as a result of the dis-
crimination against them.
WE WILL NOT, by threatening to close any terminal or by discharging any
employee, or in any other manner interfere with, restrain , or coerce our em-
ployees in the exercise of their right to self-organization , to join Teamster Local
Union No. 135, affiliated with the International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America , or any other labor organi-
zation, or to engage in concerted activities for the purposes of collective bargain-
ing or other mutual aid or protection , or to refrain from any or all such
activities..
MORRISON MOTOR FREIGHT, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 614 ISTA
Center, 150 West Market Street , Indianapolis , Indiana , Telephone Number , Melrose
2-551, if they have any questions concerning this notice or compliance with its
provisions.
Dewey Portland Cement Company, Division of Martin -Marietta
Corporation i and United Cement, Lime and Gypsum Workers
International Union, AFL-CIO, Petitioner. Case No. 16-RC-
2899. June 27, 1962
SUPPLEMENTAL DECISION AND DIRECTION
OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Paul F. Cleveland, hearing
officer 2 The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
1 The name of the Employer was amended at the hearing on January 24, 1962. This
case was originally styled as "Dewey Portland Cement Company , Division of American-
Marietta Company."
2 The initial hearing in this case was held on May 17, 1961 On November 1, 1961, the
Board Issued a Decision and Direction of Election ( not printed in Board volumes ), finding,
inter alie, that laboratory technicians , console room technicians , the instrumentation
engineer , and the instrumentation technician were technical employees , or supervisors,
and therefore excluding them from the appropriate unit. Thereafter , the Petitioner
moved the Board to reconsider this decision , contending that such employees should be
Included in the appropriate unit. Also , subsequent to the issuance of this decision, the
Board handed down its decision in The Sheffield Corporation , 134 NLRB 1101. In light
of the Sheffield decision the Board granted Petitioner ' s motion for reconsideration , ordered
that the record be reopened , and that a further hearing be held for the purpose of adduc-
ing additional evidence with respect to the job categories in dispute
The Board ' s Decision and Direction of Election of November 1, 1961, is hereby vacated
137 NLRB No. 107.