Ozark Motor Lines

National Labor Relations Board - Board Decisions

May 3, 1967

164 N.L.R.B. 300 (N.L.R.B. 1967)

300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ozark Motor Lines and General Drivers,
Saledrivers, Warehousemen & Helpers,
Local Union 245, affiliated with
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of
America. Case 17-CA-2925.
May 3, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On November 10, 1966, Trial Examiner Louis
Libbin issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended dismissal as to them.
Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner, with the following modifications:
The Trial Examiner found that Respondent's
discharge of Supervisor Camden violated Section
8(a)(1). We do not agree.
Camden was in charge of Respondent's West
Plains, Missouri, terminal. On April 27, 1966,
Camden and the three other employees at the
terminal signed union authorization cards. On
April 28, the Union wrote Respondent's owner,
Higginbotham, that it represented a majority of the
West Plains terminal employees and requested
recognition. On receiving this letter, Higginbotham
drove to the West Plains terminal on May 3, 1966,
for the admitted purpose of asking Camden about
the union activities and why he hadn't notified
Higginbotham of employee camplaints.
Higginbotham spoke to employees at the terminal
and tried by persuasion, threats, and promises of
benefits to dissuade them from adhering to the
Union. He also told Camden, "[Y]ou are responsible
' In the absence of exceptions with respect thereto , we adopt
pro forma the Trial Examiner 's Decision not to include a finding
that the Respondent further violated Section 8 (a)(1) of the Act by
for this. You can talk them out of it if you will...."
He made certain threats of what he would do if the
employees still wanted a union and instructed
Camden to repeat these statements to the employees
and try to talk them out of the Union. Camden did as
he was told, but his efforts were unsuccessful, as he
reported to Higginbotham.
On May 12, about 10 days after the above-
described conversations with Camden and the
employees at West Plains, Higginbotham
telephoned Camden and told him that Respondent's
attorney would be in West Plains on May 14 and
would like to talk to him. On the same day
Higginbotham sent Camden a note by truck mail,
asking Camden to "cooperate" with Respondent's
counsel "in any way you can." On May 13,
Respondent's attorney spoke to Camden by
telephone and asked the latter to meet with him at a
named hotel at 8 a.m. the next day. Camden agreed
to do so. Although neither Higginbotham nor his
attorney had informed Camden of the purpose of the
meeting, Camden correctly suspected that the
attorney wanted to talk to him about the Board
hearing in this case scheduled for the following
week.
The attorney drove from Memphis, Tennessee, to
West Plains, a distance of about 170 miles, for the
sole purpose of interviewing Camden. About 15
minutes before the scheduled appointment on
May 14, Camden had his brother telephone the
attorney to say that Camden would be out of town
and would not meet with him. Camden then left town
with his brother. Camden's explanation for not
keeping his appointment was that he was afraid the
attorney was a "slick" talker and "might have a
microphone or something on him."
After Camden failed to keep his appointment, the
attorney notified Higginbotham of this fact. The two
men then tried to find Camden at his home and at his
brother's place of business. When they were unable
to do so, Higginbotham left on the desk of the local
terminal office a typewritten statement prepared by
the attorney relating to Respondent's operations and
Camden's duties and authority. The statement was
designed to show that Camden was a supervisor
within the meaning of the Act. Higginbotham
telephoned Mrs. Camden to inform her of the
statement which he was leaving for her husband at
the office, and told her that Camden should read the
statement during the weekend, make whatever
changes he wanted, sign it, and mail it back to
Memphis. When Camden returned to his home that
evening, his wife told him about Higginbotham's
telephone conversation. Camden read the prepared
statement at the terminal office, but did not sign it
because he did not believe that it accurately
reflected his authority and duties. The same evening
Supervisor Camden's threats made to the employees on May 3
pursuant to instructions from the Respondent's owner.
Higginbotham
164 NLRB No. 41
OZARK MOTOR LINES 301
Higginbotham telephoned Camden and asked if he
was going to sign the statement. Camden replied
that he would not sign it . Higginbotham then said
that Camden had a vacation coming to him and
suggested that he take it immediately. Two days
later Higginbotham wrote Camden that he was
discharged. In explanation, Higginbotham said:
Events of recent weeks which have come to my
attention have established to my satisfaction
that my reliance upon you has been misplaced.
Apparently, you are not willing or able to make
the company interests your primary concern or
responsibility. Your failure or refusal to meet
and cooperate with the Company attorney who
made a special trip to West Plains at
considerable expense to me was the last straw.
The Trial Examiner found that in discharging
Supervisor Camden, Higginbotham was primarily
motivated by his resentment against Camden for his
alleged lack of effective cooperation in helping
Higginbotham stop the Union by inducing employees
at the terminal to abandon their union adherence
and support, and that the discharge therefore
violated Section 8(a)(1).
We do not agree with the Trial Examiner's
inference as to the motivating force in the discharge
of Camden.' The only evidence to support the Trial
Examiner's inference is the conversation between
Higginbotham and Camden on May 3, related above.
Camden complied with Higginbotham's instructions,
passed on the threats which had been made by
Higginbotham, and tried to talk employees out of
adhering to the Union. His efforts were unsuccessful
and he reported that fact to Higginbotham. But there
is no evidence of any Higginbotham resentment
against Camden during the 2-week period between
the May 3 conversation and the events leading to the
discharge. The immediate cause of Camden's
discharge was his refusal to cooperate with
Respondent in the preparation of its case for trial. At ,
no point in its trial preparation did Respondent make
any improper demand on Camden. At the very last;
minute, the latter canceled his appointment with
Respondent's attorney, who had made a long trip to
interview him, without finding out what the attorney
required of him. He refused to sign the attorney's
prepared statement as to his supervisory duties
although he was told that he could make any
changes in the statement that he thought necessary.
Upon the last refusal he was promptly, in effect,
suspended from active duty and then discharged.
The refusal to cooperate with the attorney was, from
Respondent's view, a serious act of insubordination
on the part of one of its supervisors. On this state of
the record, we are not convinced that, as found by
the Trial Examiner, the assigned reason for the
discharge of Camden was in effect a pretext, and
that the real reason was Camden's_ unsuccessful
efforts to persuade the terminal employees to
abandon the Union. Further, we find that neither the
proposed interview with the attorney, nor the
proposed statement to be signed by Camden
interfered with the Section 7 rights of employees,
and that the discharge of Camden, a supervisor,
because of his failure to comply with Respondent's
instructions as to these matters was therefore not
unlawful.3 Accordingly, we shall dismiss this
allegation of the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Ozark Motor
Lines, West Plains, Missouri, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified:
1. Delete paragraph 1(b) from the Recommended
Order and renumber the remaining paragraphs
consecutively.
2. Delete paragraphs 2(b), (c), and (d) from the
Recommended Order, and renumber the remaining
paragraphs consecutively.
3. Delete the first and sixth indented paragraphs
from the notice.
IT IS HEREBY FURTHER ORDERED that the
complaint herein be, and it hereby is, dismissed
insofar as it alleges violations of the Act other than
those found herein.
2 In these circumstances , we find it unnecessary to decide
whether' the discharge of Camden would have been violative of
Section 8(a)(1) if the motivating factor had been as found by the
Trial Examiner Compare National Freight , Inc, 154 NLRB 621,
with Talladega Cotton Factory, Inc., 106 NLRB 295, enfd 213
F 2d 208 (C.A. 5)
3 See Nattonhl Freight, Inc , supra
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Louis LIBBIN, Trial Examiner: Upon charges filed on
May 19, June 15, and August 3, 1966, by General Drivers,
Salesdrivers, Warehousemen & Helpers, Local Union 245,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, the
Charging Party, herein called the Union or Local 245, the
General Counsel for the National Labor Relations Board,
by the Regional Director for Region 17 (Kansas City,
Missouri), issued a complaint, dated July 8, 1966 , against
Ozark Motor Lines, herein called the Respondent. With
respect to the unfair labor practices, the complaint, as
subsequently amended , alleges, in substance, that
Respondent violated Sections 8(a)(1), (3), and (5) and 2(6)
and (7) of the Act by the discharge of two-named persons;
by refusing, upon request, to bargain with the Union which
represents a majority of the employees in an appropriate
unit ; and by engaging in acts of interference , restraint, and
coercion. In its duly filed answer , as subsequently
amended, Respondent denies all unfair labor practice
allegations.
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to due notice, a hearing was held before me at
West Plains, Missouri, on August 10, 11, and 23, 1966. All
parties were represented at the hearing and were given full
opportunity to participate and to adduce all relevant
evidence. On October 3, 1966, the General Counsel and
the Respondent filed briefs which I have fully considered.
For the reasons hereinafter stated, I find that Respondent
has violated Section 8(a)(1) and (5) of the Act and has not
violated Section 8(a)(3) of the Act.
Upon the entire record in the case and from my
observation of the demeanor of the witnesses , I make the
following:
FINDINGS OF, FACT.
I. THE BUSINESS OF RESPONDENT
Respondent is a sole proprietorship, engaged as a
common motor carrier and operating between Memphis,
Tennessee, and West Plains, Missouri, at which places
Respondent operates terminal facilities. During the year
1965, Respondent derived gross income in excess of
$50,000 from the interstate transportation of commodities.
Upon the above-admitted facts, I find, as Respondent
admits in its answer, that Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
U. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that General Drivers, Salesdrivers, Warehousemen &
Helpers, Local Union 245, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the Issues
The Respondent, Ozark Motor Lines, is a sole
proprietorship owned and operated by M. M. Higgin-
botham, sometimes referred to in the record as "Mose."
Respondent operates as a common carrier of property
between Memphis, Tennessee, and West Plains, Missouri.
Respondent has two places of business, its main terminal
at Memphis, Tennessee, where Higginbotham was
stationed, and a terminal in West Plains, Missouri, where
four men were employed during the times material herein.
When the freight from the Memphis terminal reaches the
West Plains terminal , it is "broken down" by the
employees at the West Plains terminal the following
morning and delivered by them to other trucklines in West
Plains or to the small towns in Missouri and Arkansas
served by Respondent. The issues in this proceeding
involve only the West Plains terminal employees.
On April 27, 1966, all four men employed at the West
Plains terminal signed union authorization cards.'
Higginbotham was advised of the Union's majority claim
and desire for recognition by letter dated April 28. The
Union filed a representation petition on April 29.
Higginbotham visited the West Plains terminal on May 2,
3, and 4, and during that period spoke to the employees
about the Union. By letter dated May 5, Respondent
replied to the Union's letter, stating that it had a bona fide
' Unless otherwise indicated, all dates are in 1966
z Unless otherwise indicated, the findings in this section are
doubt as to the Union's majority claim and requesting a
Board election. Delbert Camden, one of the four men
employed at the West Plains terminal, was discharged on
May 16. Robert Mauldin, another employee at the West
Plains terminal , was discharged on July 27.
The issues litigated in this proceeding are (1) whether
M. M. Higginbotham engaged in acts of interference,
restraint , and coercion violative of Section 8(a)(1) of the
Act, (2) whether Camden was a supervisor within the
meaning of Section 2(11) of the Act, (3) whether the
discharges of Camden and Mauldin were violative of
Section 8(a)(1) and (3) of the Act, and (4) whether
Respondent's refusal to recognize the Union without a -
Board election was violative of Section 8(a)(1) and (5) of the
Act. The latter issue also involves the subsidiary issues of
the validity of the representation cards and whether
Respondent's refusal was based on a good-faith doubt of
the Union's majority representation claim.
B. Interference, Restraint , and Coercion
1. The facts'
4
During the time material herein, the employees of Frisco
Transportation Company at West Plains, Missouri, were
represented by a Teamsters, local. When Robert Mauldin
was unloading freight at the Frisco Transportation dock
one time in early April, the union steward at the Frisco
terminal asked Mauldin if he-wanted to have the Union in
at Ozark Motor Lines. Mauldiiireplied in the affirmative,
and told the steward to go ahead and have them come
down. About April 25, Bob' Kirk, an organizer and
assistant business representative of Local 245, was
informed by McDaniel of Frisco Transportation that the
employees at Ozark Motor Lines would like to be
represented by this Union. On April 27, Kirk came to West
Plains and met Mauldin at the Frisco Transportation dock
where Mauldin was unloading freight. Kirk introduced
himself and stated that he heard Mauldin wanted to talk to
him. Kirk also asked where he could meet the other
employees of Ozark. Mauldin told Kirk to come to Ozark's
West Plains terminal about 5 p.m. when all the men would
be there. At the appointed time, Kirk met with Mauldin,
Camden, White, and Evans, as a group, at the terminal,
told them about the benefits of the Union, and laid four
union authorization cards on the table. All four men signed
the authorization cards in each others presence at that
time and returned them to Kirk.
By letter dated April 28 and addressed to
M. M. Higginbotham at the Memphis terminal, Kirk
advised that the Union had a majority of the West Plains
terminal employees signed up and indicated its desire for
recognition. On April 29 the Union filed a petition for an
election with the Board's Regional Director. Higginbotham
admitted receiving the Union's letter either on Saturday,
April 30, or Monday, May 2. Higginbotham drove to West
Plains on the evening of May 2, one of his admitted
purposes being "to ask Delbert [Camden] about the union
activities and if the men had complained to him and why
he hadn't notified me."
When Higginbotham arrived at the West Plains terminal
about 5 or 6 p.m., he met Mauldin as the latter was getting
ready to go home. They went into the office where
Higginbotham stated that he had heard a rumor that the
Union was trying to get in, and told Mauldin to be honest
with him. Mauldin replied that the rumor was true.
based on exhibits and credited testimony which is either admitted
or undisputed
OZARK MOTOR LINES
Higginbotham then asked Mauldin if he had signed a card.
Mauldin stated that he had and volunteered that all the
employees had signed a union card. In response to
Higginbotham's further query as to what Mauldin's
complaints were, Mauldin stated that it was the long
hours. Higginbotham then asked whether it would help to
change Mauldin's mind if he cut down the hours. Mauldin
replied that he did not think it would, but that he would
think about it.
Higginbotham then telephoned Delbert Camden at his
home, and told Camden to meet him at the Holiday Inn in
West Plains after dinner. After this telephone
conversation, Mauldin came to Camden's house and
related his prior conversation with Higginbotham. Mauldin
agreed to go with Camden to the Holiday Inn, and Camden
also got Frank White to accompany them to meet
Higginbotham. When Camden met Higginbotham at the
motel, it was decided to go to the terminal to talk. Mauldin
and White followed them to the terminal in another car.
All four were in the terminal office when the following
statements were made during the conversation which took
place there.
Higginbotham asked Camden what was wrong, stated
that there were rumors about the Union coming in, and
asked if the union man had been there. When Camden
replied in the affirmative, Higginbotham asked if he had
signed cards. Mauldin spoke up and said that he had
signed a card; White said that he was "going along with
the rest of the boys"; Camden did not say anything about
signing a card. Higginbotham then said, "we do not need a
middle man to solve our problems." When Higginbotham
asked what the complaints were, Mauldin and White
replied that it was the long hours. Higginbotham then
asked if they would forget about the Union if he would
"hire two more men [and] put on another big bob truck."
He stated that only Mauldin and White could vote in an
election, and warned that if they went union he would
"find something to fire them over." He asked the men to
think it over, and stated that he would be back in the
morning for an answer.
Higginbotham called White aside, and promised to "put
$10 more on his check a week" if he would forget about the
Union. He told White to go home and "sleep on that $10,"
to forget about the Union there. Higginbotham emphasized
that he would deny this conversation with White if the
latter mentioned it, and that it would just be
Higginbotham's word against White's.
The next morning, May 3, Higginbotham warned
Mauldin that he and White would not last long if they were
in the Union. About 8 a.m. Higginbotham called Camden
into the terminal office and stated, "Delbert, you are
responsible for this. You can talk them out of it if you will.
I am not going to go Union. I will take it to the highest
court." Higginbotham also added that he would not sign a
contract and that his trucks would come in and out of the
terminal if he had to ride them with a gun . He also told
Camden that if Mauldin and White went Union, he would
get something on them and fire them by writing three
letters. At the end, Higginbotham stated that he was going
to town, and instructed Camden to repeat Higginbotham's
statements to Mauldin and White and try to talk them out
of the Union.
When Higginbotham left, Camden repeated to Mauldin
everything which Higginbotham had stated. Mauldin's
response was that he still wanted to go Union. Upon
Higginbotham's return to the terminal around noon,
Camden reported that Mauldin still wanted to stay with
the Union, and that he had not yet spoken to White and
303
Evans who would be returning to the terminal about 3 p.m.
When Evans and White returned to the terminal, Camden
again repeated to them everything which Higginbotham
had told him that morning. After loading their trucks, all
four men went to a nearby cafe to discuss it. When
Higginbotham returned to the terminal about 5 p.m., all
four men approached him as he was sitting in his car.
Higginbotham asked if the men had changed their minds.
Camden reported that the men were going to stay with the
Union. Higginbotham warned that if they joined the Union,
he would follow them around until he got enough on them
to fire them. Higginbotham told them to think it over,
stating that he would see them in the morning.
The next morning, May 4, Higginbotham met all four
men in the office. He stated that he had to go back to
Memphis, asked them to think it over and to let him know
"if any of you boys change your mind," and left.
By letter dated May 5, Higginbotham's attorney
acknowledged the Union's letter of April 28, advised that
"the company has a bona fide doubt as to the majority
status of your union," and expressed the belief that for
that reason "it would be appropriate to have your status
determined" by a Board election.
The foregoing findings as to conversations with and
statements by Higginbotham are based on a synthesis of
the mutually consistent and credited testimony of Delbert
Camden, Robert Mauldin, and Frank White, all of whom
impressed me as being candid and straightforward
witnesses entitled to full credence. Higginbotham
admitted going to White Plains on May 2 for the purpose,
at least in part, of asking Camden about the union
activities and the complaints of the men. He admitted
talking to Mauldin that evening before telephoning
Camden, that he told Mauldin that he heard a rumor that
they were trying to get a union in, that he asked Mauldin
what was wrong, and that Mauldin said they had all signed
a card. He denied interrogating Mauldin in any respect. He
further admitted talking to Camden at the terminal that
night, in the presence of White and Mauldin, about rumors
of the Union coming in, stating that "we did not need
anybody to straighten out our affairs" and asking what
complaints the boys had. He admitted being at the
terminal during the 3 days from May 2 to May 4, but
denied making any threats of reprisals or promises of
benefits as previously set forth. At one point,
Higginbotham admitted that during that period he told
Camden that "he [Camden] could talk them out of it [the
Union] if he wanted to" or " something to that effect," and
testified that he did not "recall" whether he gave Camden
any instructions to give to the other employees. Later in
his testimony, he denied asking Camden to talk to the
other employees about the Union. On direct examination
by his attorney, Higginbotham testified that Mauldin told
him on May 2 that Camden had also signed a union card.
However, later in his testimony he admitted, in response to
a question by the Trial Examiner, that he did not know that
Camden had signed a union card at the time of his
discharge. Higginbotham did not impress me as a credible
witness by his demeanor while testifying under oath, Upon
consideration of all the foregoing, I do not credit
Higginbotham's testimony to the extent that it may
conflict with that of Camden, Mauldin, and White, and
find that Higginbotham made the statements and engated
in the conduct hereinabove set forth.
2. Concluding findings
I find that Respondent interfered with, restrained, and
coerced its employees in the exercise of their rights
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guaranteed by Section 7 of the Act and thereby violated
Section 8(a)(1) of the Act by the following conduct of
M. M. Higginbotham:
(a) Interrogating Mauldin on May 2 concerning the
rumor about the Union trying to come in and asking
Mauldin if he had signed a card.
(b) Asking Mauldin on that same occasion if a reduction
in the hours would help change his mind about the Union.
(c) Asking the employees at the terminal office on
May 2 in response to their complaints about the long
hours, if they would forget about the Union if he would hire
two more men and put on another big bob truck.
(d) Warning Mauldin and White at the terminal office
on May 2 that if they went union he would "find something
to fire them over."
(e) Promising White on May 2 a $10 increase if he
would forget about the Union.
(f) Warning Mauldin on the morning of May 3 that he
and White would not last long if they went Union.
(g) Warning the employees on the evening of May 3 that
if they joined the Union he would follow them around until
he got enough on them to fire them.3
C. The discharge of Delbert Camden
One of the principal issues in dispute in connection with
Camden's discharge is whether he was a supervisor within
the meaning of the Act. The General Counsel contends
that Camden was not a supervisor and that he was
discharged for his union activities and for his failure to
cooperate with Respondent to stop the union movement.
The General Counsel further contends that the latter
reason would render the discharge unlawful even if
Camden were found to be a supervisor. Counsel for
Respondent contends in his brief that Camden was a
statutory supervisor and that he was discharged primarily
for failing to keep an appointment with Respondent's
attorney., He further contends that even if Camden was
discharged for his union activities or for his failure to
cooperate with Respondent in trying to talk the employees
out of voting for the Union, such a-discharge would-not be
unlawful because of Camden's supervisory status.
1. The supervisory status of Camden
The issue as to whether Camden was a supervisor
within the meaning of the Act was extensively litigated.
While much of the testimony bearing thereon is con-
flicting, my ultimate finding as to Camden's status is
based on the following evidence which is either admitted
or undenied.
Camden was the senior employee in point of service at
the West Plains terminal , having been initially employed
in September 1961, and the only employee at the
beginning. In 1963, before the West Plains terminal was
located at its present quarters, a picture of Higginbotham
and Camden appeared in the local newspaper, with a
reference to Camden as the West Plains terminal
manager. About a month later, Higginbotham had some
business cards printed, which cards designated Delbert
Camden as terminal manager at West Plains and which
were left in the West Plains terminal office. In 1964, at a
time when there was one other regular employee at West
Plains, Camden's name and home telephone number was
put on the door of the West Plains terminal office at its
present location.
As the West Plains operations increased, more
employees were hired until there were three other regular
employees by March 1966. At the time of his discharge,
Camden was paid $7.50 per week more than the next
highest paid employee. Respondent's office has always
been at the Memphis terminal where Higginbotham, his
wife, and son were stationed. Higginbotham made
infrequent trips to the West Plains terminal , averaging
about one a month for periods of about 2 to 3 days. No
other supervisor was employed at the West Plains
terminal.
New regular employees, known to Camden but not to
Higginbotham, were hired upon Camden's
recommendations, in many instances without having been
interviewed by Higginbotham or seen by him until after
they had already been working at the terminal . Thus, in
January 1964 Robert Mauldin's father told Camden that
his son needed a job. Camden knew Robert Mauldin, and
sent a note to Higginbotham at the Memphis terminal,
advising that Mauldin was a "good hand" and
recommending him if Higginbotham could use him.
Higginbotham replied that he could use him 4 or 5 hours a
day. Camden then notified Mauldin's father that Mauldin
could report for work. Higginbotham had not known
Robert Mauldin, had not interviewed him, and did not
meet him until he was already working. After a while,
Mauldin began working full time. In the case of Frank
White, who was hired as a full-time employee in October
1964, Camden had known him for a number of years.
When White asked Camden if he thought he might be
taken on, Camden sent Higginbotham a note at the
Memphis terminal , stating what kind of work White did,
that he was a good driver, and recommending him.
Higginbotham informed Camden that he could put White
to work. Camden thereupon informed White that he could
report for work. Higginbotham had not known White, had
not interviewed him, and did not meet him until he was
already working. In the case of LaRoy Evans, hired as a
full-time employee in March 1966, Evan's mother-in-law
asked Camden what chance her son-in-law had of getting
on. He told her to have Evans come to the terminal the
following Saturday when Higginbotham was expected to
be there. Camden knew Evans, whereas Higginbotham did
not. That Saturday, Camden introduced Evans to
Higginbotham who talked to Evans. When Higginbotham
asked Camden what he thought, Camden replied that he
thought Evans would be all right and recommended him.
Shortly thereafter, Camden, pursuant to Higginbotham's
instructions , told Evans he could report for work. When
Ralph Jolliff was hired as a full-time employee in 1962,
Camden took him over to Dodd's terminal to introduce him
'to Higginbotham who happened to be there. Higginbotham
had not known Jolliff. Camden told Higginbotham that he
had worked with Jolliff at Frisco Transportation, that
Jolliff had handled freight and should be able to handle the
9 Higginbotham is also responsible for the coercive statements
of Camden on May 3 to the other employees, made at
Higginbotham's request and instructions , that Higginbotham was
not going to go Union , would take it to the highest court, would not
sign a contract, and would get something on Mauldin and White
and fire them by writing three letters if they went Union. It is true,
as counsel for Respondent states in his brief, that the complaint
does not specifically allege any unlawful conduct by Camden as
Respondent 's agent In view of the further contention of counsel
in his brief that Respondent should not be found guilty of a matter
not charged in the complaint, I have not included these
statements in my findings of violations of Section 8(a)(1) of the
Act
OZARK MOTOR LINES
job, and that he recommended him. Jolliff was hired as a
full-time employee.
The requirements as to the number of employees at the
West Plains terminal varied from time to time, depending
upon the volume of freight. The decision as to whether a
temporary extra hand was needed and for how long a
period was made by consultation of Camden with the other
regular employees as a group . If it was decided that such
temporary help was needed, whichever employee knew of
someone he could get, made the call. Not until after such
help was hired, did Camden inform Higginbotham, by a
note to the Memphis terminal , of the name of the new hire,
his social security number, and dependents and the
number of days or hours worked. In most instances,
Higginbotham never even saw the extra help hired in this
manner.
The day-to-day operations of the West Plains terminal
varied with the amount of freight required to be handled.
While Higginbotham knew at the end of each week how
much business had been performed at West Plains, he did
not know what it was on a day-to-day basis. For example,
the number of runs to be made south might vary from day
to day. Decisions had to be made at the West Plains
terminal on a daily basis as to what runs to make, what
routes to change, and which employee was to operate
which trucks. Higginbotham was not present at West
Plains to make these decisions. When these situations
arose, Camden discussed it with the other employees as a
group and a decision as to what to do was reached.
Camden never issued peremptory orders or told
employees to perform certain tasks or assignments. He
would always ask the employees if they could do "so and
so" or suggest that they do "so and so." For example,
Camden would say to an employee, "maybe you ought to
go south today." The employees never disagreed.
During his last few years, each employee kept his own
timecard and at the end of the week sent it in to the
Memphis terminal . However, Camden never turned in a
timecard for himself during that period. The envelope
which contained the checks for the West Plains employees
was addressed to Camden, and he would pass the checks
out whenever he was at the terminal when the checks
arrived.
Although Camden spent a substantial part of his time
performing the same work as the rank-and-file employees,
I am convinced and find that Camden had the authority,
which he in fact exercised, which rendered him a
supervisor within the meaning of Section 2(11) of the Act. I
am convinced and find, on the basis of the above-admitted
and undisputed facts, that at the very least Camden had
the authority, which he in fact exercised, effectively to
recommend the hire of other employees and that he also
had the authority responsibly to direct other employees
within the meaning of Section 2(11) of the Act.
2. The discharge of Camden4
On Thursday, May 12, Higginbotham talked to Camden
by telephone and advised him that Respondent's attorney
would be in West Plains Saturday and would like to talk to
him. Camden replied that he would try to meet with the
attorney. Higginbotham also sent Camden a note to the
same effect by truck mail, dated May 12 and asking
Camden to "cooperate" with Respondent' s counsel "in
any way you can." On Friday morning, May 13, Wellford,
305
Respondent's attorney, talked to Camden by telephone
and asked if Camden would meet him at the Holiday Inn in
West Plains at 8 a .m. the next day. Camden agreed to do
so. Camden did not keep this appointment. Instead, at his
request, his brother telephoned to Wellford at the Holiday
Inn about 7:45 a.m. on Saturday, and advised Wellford
that Camden would be out of town and would not meet
with him. Camden left at 8 a.m. for St. Louis with his
brother who was driving cars for Willard Bros.
Neither Wellford nor Higginbotham had informed
Camden about what Wellford wanted to talk to him.
However, Camden suspected that Wellford wanted to talk
to him about the Board hearing scheduled to be held the
following week in West Plains. He changed his mind that
morning about meeting and talking to Wellford because he
was afraid that Wellford was a "slick talker" and "might
have a microphone or something on him."
IfigginbotFiam had driven to West Plains with his wife
on Friday night to see about trading a truck. While he was
at the West Plains terminal on Saturday morning, he
received a telephone call from Wellford who advised that
Camden had not kept his appointment. Higginbotham then
went to Holiday Inn and spoke to Wellford, who also had
his family with him. When they were unable to find
Camden at his home or at his brother's place of business,
Higginbotham left on the desk in the terminal office a four-
page typewritten statement, which had been prepared by
Wellford, relating to Respondent's operations and
Camden's duties and authority. The statements were
designed to show that Camden was a supervisor within the
meaning of the Act. He then telephoned Mrs. Camden,
informed her of the statement prepared by his attorney
which he was leaving at the terminal, and stated that
Camden should read it during the weekend, make
whatever change he wanted, and sign and mail it back to
Memphis.
When Camden returned home Saturday night, his wife
told him about Higginbotham's telephone call concerning
the statement he had left at the terminal. This was the first
knowledge that Camden had about any statement
prepared by Wellford. Camden read the statement on
Sunday but did not sign it because he did not believe that
it accurately reflected his authority and duties.
About 9:45 that night, Higginbotham telephoned
Camden and asked if he was going to sign the statement.
Camden replied that he would not sign it. Higginbotham
then stated that Camden had a vacation coming to him and
suggested that he take it now. Camden agreed to take his
vacation beginning the next day, Monday, May 16.
Higginbotham informed Camden of his immediate
discharge by letter dated May 16 and delivered to him by
Robert Mauldin on May 17. The letter gave the following
reasons for Higginbotham's conclusion that Camden's
employment "must come to an end effective
immediately":
Events of recent weeks which have come to my
attention have established to my satisfaction that my
reliance upon you has been misplaced. Apparently,
you are not willing or able to make the company
interests your primary concern or responsibility. Your
failure or refusal to meet and cooperate with the
Company attorney who made a special trip to West
Plains at considerable expense to me was the last
straw.
4 The findings in this section are based on a synthesis of the
testimony of Higginbotham and Camden, which testimony is
mutually consistent and not in dispute.
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Respondent's contentions
Higginbotham testified that he had made the decision to
discharge Camden on Saturday morning, May 14, when
Camden failed to meet Respondent's attorney despite
Camden's previous promise to do so. Yet, he admittedly
gave Camden no inkling of any impending discharge when
he talked to him the following Sunday night. Instead, he
told him to take the vacation which was coming to him.
Higginbotham's only explanation was that "I wanted time
to think."
Higginbotham testified that his reasons for discharging
Camden are set forth in his discharge letter, dated May 16.
The "events of recent weeks," mentioned in the discharge
letter, were explained by Higginbotham to refer to
Camden's conduct in allegedly changing freight routings,
in accepting a personal check on a c.o.d., and in failing to
keep his agreed appointment with Attorney Wellford who
made the trip to West Plains at "considerable expense to
me." When asked on cross-examination whether the
advent of the Union was not also one of "the events of
recent weeks" referred to in the letter, Higginbotham
admitted that he was "disappointed" that Camden had not
informed him about it and about "that the men were
dissatisfied."
With respect to the first matter, Higginbotham testified
that he sent Camden a letter by truck mail on May 9,
stating that "in the future no routings are to be changed on
bills that come to West Plains as these are shipper
instructions and we must try to please the customers."
Higginbotham admitted that it was "possible" that
Camden had never before changed the routes, and also
that nothing further was said about this matter. On the
other hand, Camden credibly testified that he had always
routed the freight in accordance with the routings listed on
the customer's freight bill, and that he had never seen the
above-mentioned letter of May 9.
With respect to the second matter , Camden had taken a
check on a c.o .d. order for Carl Wheeler, and the check
had "bounced." About May 11, Higginbotham telephoned
Camden, asking where the money was on the c.o.d. for
Carl Wheeler and stating that "I told you never to take a
check." However, Camden credibly testified, without
contradiction , that several years previously Higginbotham
had instructed Camden not to take a check on a c.o.d.
except from Carl Wheeler, that since that time he had
taken numerous checks on c.o .d. orders from Carl
Wheeler without Higginbotham saying anything to the
contrary, and that this was the first time that Wheeler's
check had "bounced."
With respect to the alleged "considerable expense"
incurred by Higginbotham because of the trip made by his
attorney with his family to West Plains on Saturday
morning, May 14, the record shows that at the time he sent
the discharge letter Higginbotham did not know what, if
any, expenses he incurred in this connection . Thus, when
asked on direct examination if he had incurred any
expenses in connection with this trip, Higginbotham
testified , "I imagine I did. I haven 't got the expense yet."
Higginbotham admitted that when he retained Attorney
Wellford upon receipt of the Union' s letter of April 28, he
was told it would not cost him over $150 "up to the
research." He further admitted that it was not until "about
the last of July" that he received the first bill from Wellford
in the amount of $250 , and that he was given no breakdown
as to what if any of the amount was for the trip to West
Plains. By the time Higginbotham received this bill, the
complaint had already issued in the instant proceeding,
setting the hearing for August 10, and Wellford had
already filed an answer to the complaint.
At the instant hearing, counsel for Respondent for the
first time advanced additional and different reasons for the
discharge of Camden. In his opening statement at the
beginning of the hearing , Attorney Wellford stated as the
sole reason for Camden 's discharge his failure to keep his
agreement to meet with Wellford , "after the Company
went to considerable expense ." On the last day of the
hearing , when Respondent 's first witness for that day was
on the stand , Wellford advanced an additional alleged
reason for Camden's discharge. At that time, Wellford
stated that Camden , in part , "was discharged for activities
of participating in the organization of the plant" as a
supervisor and for "his failure to notify the Company of
union activity ." In support of this asserted defense,
Higginbotham testified that sometime after receiving the
Union's letter claiming majority representation, he was
informed by Charles DeGraw, one of his Memphis drivers,
that Camden had asked him to join the Union. However,
Higginbotham admitted that he did not know whether this
alleged conversation occurred before or after Camden's
discharge , and that "it might have been after ."5 In this
connection , Respondent 's counsel also points to the fact
that Mauldin had volunteered to Higginbotham on the
evening of May 2 that all the employees had signed a union
card . However, Higginbotham admitted that Camden had
never stated that he had signed a union card, and he
further admitted , in response to a question from the Trial
Examiner, that at the time of the discharge he
(Higginbotham) did not know whether Camden had signed
a union card.
During the testimony of Respondent 's second witness
on the last day of the hearing, Attorney Wellford advanced
still a third reason for Camden 's discharge . This related to
the testimony of Higginbotham 's son , Steve , that while he
was temporarily working at the West Plains terminal from
May 10 through May 12 he observed that the employees
stayed around the terminal after finishing their runs and
put in their time for it , and that he reported this
observation to his father upon his return to the Memphis
terminal . Higginbotham admittedly never said anything
about this matter . And Attorney Wellford has now
presumably abandoned this alleged reason , as he makes
no mention of it in his brief.
Upon consideration of all the foregoing , I am convinced
and find that the above-asserted reasons for the discharge
of Camden were advanced as pretexts and afterthoughts to
cloak Respondent ' s true motivating reason . Further
supporting this finding is the credited testimony of Frank
White and LaRoy Evans as to the reasons which
Higginbotham gave them , separately , within a few days
after Camden 's discharge . Higginbotham told White,
before the latter started his run, that he had discharged
Camden because he was an "agitator " and that he would
never work for him again. On the livening of May 16,
Higginbotham called Evans into the terminal office when
the latter returned from his run. Higginbotham first told
Evans that Camden had been fir ed and that there would be
a letter to that effect the next morning. He then stated that
5 Camden did not in fact talk to DeGraw about the Union or ask
him to join, as hereinafter found
OZARK MOTOR LINES
he had proof that Camden had brought the Union in there
and that he had fired Camden because Camden had
"stabbed" him in the back . Evans asked what
Higginbotham meant . Higginbotham told Evans how he
had started with Ozark Motor Lines long ago , that he and
Camden had worked hard , and that Camden had
"stabbed" him in the back . Higginbotham emphasized
that the scheduled representation hearing would not
amount to anything , that what he got , he "got the hard
way," that nobody was "going to take it away " from him,
and that he would "fight it up to the highest court" if he
wanted to . When Evans pointed out that Frisco , Dodds,
and Basil Truck Lines all worked under union
representation , Higginbotham retorted , "You haven't
heard a word I said."s
4. Concluding findings
Immediately upon receipt of the Union's letter claiming
majority representation , Higginbotham journeyed to West
Plains on the evening of May 2 for the admitted purpose,
at least in part, of talking to Camden about the union
activities of the men . That evening, he spoke to Mauldin,
Camden , and White ; indicated his opposition to the Union;
and coercively attempted to induce Mauldin and White to
abandon their support of the Union after being informed
by them that they had signed union cards, as previously
found in detail . The next morning, Higginbotham called
Camden into the office , accused him of being responsible
for what had happened , and emphasized that Camden
could talk the men out of the Union if he wanted to, as
previously found . He then instructed Camden to make an
effort to talk Mauldin and White out of the Union, and in
the process to inform them that Higginbotham would
never sign a contract and that if Mauldin and White went
Union Higginbotham would get something on them and
fire them , also as previously found . The next day, Camden
reported to Higginbotham that he had talked to Mauldin
and White and that the men decided to stay with the
Union.
Higginbotham was well aware that Camden was friendly
with the other employees , had recommended them for
employment , and had known them for a long time , as they
all lived in the same small community . He sincerely
believed that Camden could have talked Mauldin and
White out of the Union if he had wanted to, as he had
indicated to Camden . I believe that Camden 's failure to do
so, under all the circumstances , led Higginbotham to infer
that Camden had not wanted to, and caused Higginbotham
to resent what he regarded as Camden 's lack of effective
cooperation in helping him stop the Union by inducing
Mauldin and White to abandon their union adherence and
support . I am convinced that this is what Higginbotham
had in mind when , as previously found , he told Evans that
Camden was discharged because he had "stabbed"
6 Higginbotham testified that he did not "recall any"
conversation with any other employee at the West Plains terminal
as to the reason for Camden 's discharge He admitted that "it
seems like LaRoy [Evans ] and I were talking about it, but I don't
recall how the conversation went about " I do not credit
Higginbotham's testimony to the extent that it may constitute a
denial of that of White and Evans, as set forth in the text
' This finding is in no way rebutted or weakened by a statement
of a deputy of the Division of Employment Security of Missouri
that Camden was discharged for failing to meet with
Respondent 's attorney The record shows that no hearing had
been held, that the finding was based on information obtained in
307
Higginbotham in the back. In Higginbotham 's eyes, this
also branded Camden as an "agitator" who was
responsible for the Union being there, as he told White.
Higginbotham 's alleged complaints about Camden's
work and conduct began after Camden's failure to talk the
men out of the Union. Then, when Camden failed to keep
his appointment with Attorney Wellford, this presented
Higginbotham with a suitable pretext to effect Camden's
discharge . Seizing upon this, he summarily discharged
Camden, without any prior warning or notice. But his true
motive in discharging Camden was disclosed to Evans and
White right after the discharge, as previously found.
However , additional and different reasons were
subsequently advanced as afterthoughts to strengthen the
case against Camden.
I am convinced and find that in discharging Camden,
Higginbotham was primarily motivated by his resentment
against Camden for his alleged lack of effective
cooperation in helping Higginbotham stop the Union by
inducing Mauldin and White to abandon their union
adherence and support, in accordance with
Higginbotham 's prior instructions .7 It is now well settled
that the discharge of a supervisor under these
circumstances unlawfully interferes with, restrains, and
coerces the nonsupervisory employees in the exercise of
the rights guaranteed by Section 7 of the Act, and
therefore constitutes a violation of Section 8(a)(1) of the
Acts Accordingly, I find that Respondent violated only
Section 8(a)(1) of the Act by discharging Delbert Camden
on May 17,1966.
D. The Discharge of Robert Mauldin
Robert Mauldin was employed at the West Plains
terminal as a pickup and delivery driver from January
1964, until his discharge on July 27, 1966. The Respondent
contends that Mauldin was discharged for failing to
account for money received by him on deliveries which he
made freight collect. The General Counsel contends that
Mauldin did not misappropriate this money and that the
alleged incident was seized upon as a pretext to discharge
Mauldin because of his continued adherence and loyalty to
the Union.
1. The discharge of Mauldin
Each pickup and delivery driver is required to turn in
the original freight bills signed by the consignee and the
delivering driver. These signatures indicate that the
merchandise was received by the consignee and that the
driver received payment on the freight-collect shipments.
Each driver is responsible for his own collections and is
required to place the day's receipts of receipted bills and
cash collections in a sealed envelope for forwarding to the
Memphis terminal at the end of the day. In the latter part
separate ex parte conversations with Camden and with Attorney
Wellford, that Camden never informed the deputy about
Higginbotham 's statements and threats relating to the Union and
his instructions to Camden to try to talk the men out of the Union,
and that Camden was at no time represented by an attorney
6 See, e g., Talladega Cotton Factory, Inc, 106 NLRB 295,
enfd 213 F 2d 208 (C A 5) Southwest Shoe Exchange Company,
136 NLRB 247 , cited in Respondent's brief, is inapposite because
there , unlike in the instant case , the supervisor was not instructed
to relay to the employees the owner's threats of reprisals and
coercive statements
298-668 0-69-21
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of July, Mrs. Higginbotham, Respondent's bookkeeper in
the Memphis terminal, requested West Plains Terminal
Manager Jolliff to trace and report on three receipts and
their freight charges because they had failed to show up.
Jolliff found one of the bills, dated July 6, in the glove
compartment of the truck usually driven by Mauldin, and
two other bills, dated July 22, in a box on the desk in the
office. The latter two bills bore Mauldin's initials. On
July 25, Jolliff spoke to Mauldin about these bills. He then
informed Higginbotham about the three bills he had found,
advising that Mauldin had stated he received the money
and spent it.
The following letter, dated July 26, was received by
Terminal Manager Jolliff on July 27, with a note that Jolliff
should give it to Mauldin after he finished his work that
evening.
Mr. Robert Mauldin
c/o Ozark Motor Lines
West Plains, Missouri
Dear Robert:
It has come to my attention this date that you have
failed to turn in some freight collection money
entrusted to you. The shortages were discovered by
Mrs. Higginbotham upon checking upon the pro. nos.
and the Terminal Manager was asked to check into
the matter. He advises me that one signed delivery
receipt was found in the glove compartment of your
truck and another in your pocket. I am further
advised by the Terminal Manager that you admitted
that you received the money and spent it.
While I recognize that you have had some personal
problems and financial difficulties, it is absolutely
necessary that we be able to rely upon the personal
integrity and honesty of our employees. This
dishonesty cannot be tolerated under any
circumstances. Therefore, I regret to advise you that
your employment is terminated effective upon the
conclusion of your work on Wednesday, July 27, 1966.
If I am in error on any of the facts relied upon in
making this judgment, I trust that you will bring it to
my attention and if you have been wronged by this
action, we will be most happy to reconsider it.
Yours very truly,
OZARK MOTOR LINES
By /s/ M. M. Higginbotham
M. M. HIGGINBOTHAM
Jolliff did not give this letter to Mauldin that evening.
Instead, he took it with him to Mauldin's parents and
explained to them why Mauldin was being discharged. The
next morning, he gave the discharge letter to Mauldin.
Although the amount of the freight collections from these
three bills was deducted from Mauldin's last check,
Higginbotham never received any reply to the discharge
letter or any claim from Mauldin that the facts recited
therein were erroneous.
9 I deem it unnecessary to resolve any conflict between the
testimony of Mauldin and Jolliff in this regard For what is
relevant on this issue is the content of the report which Jolliff
2. Concluding findings
Mauldin denied having misappropriated any funds. He
admitted that on July 25 Jolliff talked to him about these
three bills. He testified that he told Jolliff that he had
collected the money on the July 22 bills and that he had
put the money and the bills in an envelope that went to
Memphis. As for the third bill, dated July 6, he testified
that he told Jolliff that he did not know whether he had
delivered that merchandise or collected that money
because the receipt did not bear any signature or initials.
He further testified that he also told Jolliff that if he had
made a mistake he would pay for the two bills he had
collected. He denied spending the money or having told
that to Jolliff.9
On cross-examination, Mauldin admitted that it was
possible that one of the receipts was found in the glove
compartment of his truck. He also admitted that it was
possible that he had failed to put the bills and money in the
envelope for shipment to Memphis. He testified that he did
not know what happened to the money, but denied that he
took it. He further admitted that he never answered the
discharge letter and never got in touch with Higginbotham
to claim that it contained erroneous statements, as the
letter invited him to do if he considered the facts relied on
by Higginbotham to be erroneous. The General Counsel
places great stress in his brief on the fact that Mauldin,
upon his return from his run on July 27, refused to sign a
statement previously prepared by Attorney Wellford
similar to the one which Camden had refused to sign.
However, the undisputed evidence shows that Jolliff had
received Mauldin's discharge letter that day but before he
had even asked Mauldin to sign this statement.
While the matter is not entirely free from doubt in view
of Higginbotham's unsuccessful efforts to induce Mauldin
to abandon his union adherence and support, I am not
convinced, upon the basis of the entire record, that the
General Counsel has satisfied his burden of sustaining the
allegation with respect to the alleged discriminatory
discharge of Robert Mauldin. Accordingly, I will
recommend dismissal of this allegation of the complaint.
E. The Refusal to Bargain
1. The appropriate unit and the Union 's majority status
therein
I find, in accordance with the stipulation of the parties,
that all employees of Ozark Motor Lines at its West Plains,
Missouri, terminal, excluding officers, clerical employees,
guards, professional employees, and supervisors as
defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
The parties agree that the following were employed by
Respondent at the West Plains terminal at all times
material herein: Delbert Camden, Robert Mauldin, Frank
White, and LaRoy Evans. The record shows, without
dispute, that on April 27, all four signed union
authorization cards in each others presence on the
occasion when Union Respresentative Kirk spoke to them
at the terminal about the Union, as previously found.
Excluding Camden, whom I have previously found to be a
made to Higginbotham, and not whether such a report was true or
accurate.
OZARK MOTOR LINES
supervisor within the meaning of the Act, the Union has
signed authorization cards from 100 percent of the
employees in the appropriate unit.
Counsel for Respondent contends in his brief that the
authorization cards are tainted and do not reflect the free
choice of the employees because they "were signed by the
employees in the presence of, with the support and
encouragement of and agreement of their supervisor, who
participated in the organizational efforts and who signed a
card along with the rank-and-file employees." The record
does not support counsel's contention. The record clearly
shows that Camden, herein found to be a minor
supervisor, never solicited or even talked to the employees
about signing these cards. Indeed, it was Robert Mauldin
who, without Camden 's knowledge , was instrumental in
having Kirk come and talk to the men about the Union, as
previously found. All that Camden did was to be present at
the terminal when Kirk spoke to the men and at that time
to sign a card simultaneously with the others and in their
presence.10 The record further shows that the men were
independently familiar with the local represented by Kirk.
Thus, the undisputed evidence shows that Mauldin knew
about it from his father who was a member for 22 years;
Evans knew about it from his father-in-law who was a
member for 20 years; and White had himself belonged to
this same local for 9 years. Evans, the newest employee,
had never heard of any union discussion at the terminal
prior to the occasion on April 27. Moreover, although
Higginbotham claimed that Camden was the terminal
manager and a supervisor, the undisputed evidence shows
that neither Camden nor any of the employees regarded
Camden as their supervisor or boss. Nor is there any
evidence that Higginbotham ever told the employees that
Camden was the terminal manager and their supervisor or
superior . Indeed , before they signed the authorization
cards, Kirk asked each employee what his duties and
responsibilities were and who was his boss. They each told
him that Higginbotham was their boss and that he was in
Memphis. When Camden related his duties and
responsibilities, Kirk stated that he would consider
Camden as a working foreman or leadman eligible to sign
a card. Indeed, the undisputed evidence further shows
that when Kirk on that occasion told the men that they
could talk it over by themselves before signing the cards, it
was Mauldin who spoke up and said, "We don't need to
wait. We can sign them now."
In view of the foregoing, I find that Camden's presence
and signing of a card at the terminal on April 27 did not
taint the validity of the other three cards.'' I find that
Mauldin, White, and Evans signed their authorization
cards of their own free will, without any assistance,
solicitation, or encouragement in any form from Camden. I
find that at all times since April 27, 1966, the Union has
represented a majority of the employees within the
appropriate unit and has been, and still is, the exclusive
representative of all the employees within said unit for the
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
10 Charles DeGraw, an over-the-road driver from the Memphis
terminal , testified that in March 1966, Camden spoke to him
about union organization and asked DeGraw if he wanted to loin
Camden denied having made these statements to DeGraw He
testified that on the occasion in question DeGraw told him that
Higginbotham had a $16,000 cabin on the lake down there and a
new 1966 Mercury, and that DeGraw added that "it wouldn't hurt
309
2. The request and refusal
a. The facts
By letter dated April 28, 1966, and addressed to "Mr.
Mose Higginbotham " at the Memphis terminal, Union
Respresentative Kirk advised that the Union had "a
majority of your employees at the West Plains, Mo.
terminal signed up with our organization ," and inquired
whether Respondent would "recognize our Organization
as bargaining agent for your employees" or desired the
Union to seek a Board election. The next day, the Union
filed a petition for an election with the Board's Regional
Office.
Higginbotham admittedly received the Union's letter
either on Saturday, April 30, or on Monday, May 2. After
receiving the Union' s letter , he arrived at the West Plains
terminal on the evening of May 2, and was informed first
by Robert Mauldin that all the employees had signed union
cards and then by Mauldin and Frank White that Mauldin
and White had each signed a union card, as previously
found. During the period from May 2 to 4, Higginbotham
engaged in numerous acts of interference, restraint, and
coercion violative of Section 8(a)(1) of the Act, such as
interrogation, threats of reprisals in the form of loss of
their jobs if they went Union, and promises of benefits in
the form of wage increases, reduced hours, and more help,
if they abandoned the Union, all as previously found. He
also instructed Camden to talk Mauldin and White out of
the Union and to relay to them Higginbotham's threats of
reprisals and coercive statements if they adhered to the
Union, all as previously found.
By letter dated May 5 and addressed to the attention of
Union Representative Kirk, Respondent's Attorney
Wellford acknowledged receipt of the Union's letter of
April 28 and the Union's "claim to represent a majority of
the employees of Ozark Motor Lines at its West Plains,
Missouri, terminal ," stated that "the company has a bona
fide doubt as to the majority status of your union , and for
that reason we believe that it would be appropriate to have
your status determined" by a Board election, and noted
that the Union had already filed a petition for an election
with the Board' s Regional Office.
Upon the filing of the unfair labor practice charges,
alleging, among other things, that Respondent unlawfully
refused to bargain, the Union's request for the withdrawal
of its representation petition was granted by the Regional
Director on June 27.
b. Respondent 's contentions and concluding findings
Counsel for Respondent contends in his brief (1) that the
Union's letter of April 28 "makes no demand for
recognition or request that the company bargain with it";
(2) that the Union had filed a petition for an election before
Respondent received the Union's letter of April 28; and
(3) that "the Respondent expressed a bona fide doubt and
still has such doubt about the status of the Union." I find
no merit in any of Respondent's contentions.
him to pay union wages " Camden further testified that his only
comment was , " I guess it wouldn't " I credit Camden 's version of
the conversation on this occasion
" See, e g N L R.B v Intl Union, United Automobile Workers
(Aero Corporation), ,363 F 2d 702 (C.A.D.C ), enfg 149 NLRB
1283, 1286 ; and Southland Paint Company , Inc., 156 NLRB 22,
at 44, 45.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is well settled that no "special formula or form of
words" is necessary to invoke bargaining. Joy Silk Mills,
Inc. v. N.L.R.B., 185 F.2d 732,741 (C.A.D.C.). The Union's
letter clearly indicates its desire for recognition. Implicit
in a Union's request for recognition is a demand that
Respondent deal and bargain with it. Respondent cannot
reasonably claim that it was confused or misled by the
Union's letter. Its reply indicates its awareness that
the Union was seeking recognition, and its refusal was
based solely on its assertion that it had a bonafide doubt of
the Union's majority claim. And a refusal "to recognize"
the duly designated representative of a majority of the
employees in an appropriate unit in itself constitutes a
refusal to "bargain" within the meaning of Section 8(a)(5)
of the Act. McQuay-Norris Manufacturing Company v.
N.L.R.B., 116 F.2d 748 (C.A. 7). Finally, as Respondent's
refusal to recognize the Union is hereinafter found to have
been motivated by a rejection of the collective-bargaining
principle and a desire to gain time to subvert unionization,
its claim that the Union's request was defective appears to
be an afterthought, advanced for the first time in the brief,
to justify its refusal to recognize and bargain with the
Union.12
The filing of the Union's representation petition is
neither inconsistent with a recognition request nor affords
the Respondent a basis for a good-faith doubt of the
Union's majority status. For a union may seek alternative
procedures for attaining recognition."
The question of whether Respondent entertained a
good-faith doubt of the Union's majority status must be
assessed in the light of all the surrounding circumstances,
particularly its contemporaneous conduct. Engineers &
Fabricators, Inc. 156 NLRB 86. And "to be `fair' or in
`good faith' doubt must have a rational basis in fact."
N.L.R.B. v. Glasgow Co., 356 F.2d 476 (C.A. 7); N.L.R.B. v.
Superior Sales, Inc., 366 F.2d 229, 236 (C.A. 8). In the
instant case, as previously found, Respondent reacted to
the Union's request by engaging in the unfair labor
practices which were plainly calculated to discourage
adherence to the Union and to preclude the holding of any
free election. When this is considered together with the
fact that Mauldin and White told Higginbotham that they
had signed union cards and Mauldin also stated that all the
employees had signed cards, Respondent's conduct is
tantamount to an absolute refutation of any good-faith
doubt and is indicative of a rejection of the collective-
bargining principle and a desire "merely to gain time to
dissipate the very majority which it now contends was in
doubt." N.L.R.B. v. Philamon Laboratories, Inc., 298
F.2d 176, 180 (C.A. 2). Under these circumstances,
Respondent's refusal to recognize the Union cannot be
attributed to a good-faith doubt of the Union's majority
status. Accordingly, I find that by refusing to recognize the
Union, Respondent has violated Section 8(a)(5) and (1) of
the Act. 14
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
12 Montgomery Ward & Co, 160 NLRB 1729, 1744-45
13 Ibid at 1745-46, Vinylex Corporation , 160 NLRB 1883, 1884,
fn 3
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. All employees of Ozark Metor Lines at its West
Plains, Missouri, terminal, excluding office clerical
employees, guards, professional employees, and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
2. At all times since April 27, 1966, the Union has been,
and still is, the exclusive representative of all the
employees within the said appropriate unit for the
purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, or other conditions of
employment, within the meaning of Section 9(a) of the Act.
3. By refusing to recognize General Drivers,
Salesdrivers, Warehousemen and Helpers, Local Union
245, affiliated with International Brotherhood of'
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative of the employees
in the above -described appropriate unit , the Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
4. By the foregoing conduct, by the discharge of Delbert
Camden for the reasons found in section III, C, supra, and
by the conduct of M. M . Higginbotham detailed in section
III, B, supra, the Respondent has interfered with,
restrained , and coerced its employees in the exercise of
rights guaranteed by Section 7 of the Act and thereby has
engaged in and is engaging 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 commerce within the meaning of
Section 2(6) and (7) of the Act.
6. The Respondent has not engaged in unfair labor
practices insofar as the complaint alleges violations of the
Act in the discharge of Robert Mauldin or in any other
respect not specifically found herein.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I will recommend that it cease and desist
therefrom and take certain affirmative action which will
effectuate the policies of the Act.
I have found that Respondent violated Section 8(a)(1) of
the Act by the discharge of Delbert Camden. On the
evening of August 22, while the instant hearing was in
progress, Camden received from Higginbotham a letter
offering him "immediate and unconditional reinstatement
as an employee of Ozark Motor Lines at its West Plains"
terminal without "any offer of back pay for the period of
your separation." The letter further requested Camden to
"report for work at the earliest possible date" "if you
decide to accept this offer." The next day, Camden
testified that he had informed Higginbotham that noon
that he was willing to come back as a truckdriver in
response to this letter. Higginbotham testified that his
letter constituted an offer of reinstatement to the same
duties and responsibilities which Camden previously had
and at the same rate of pay. However, it is not clear from
this letter and the testimony whether Camden was offered
14 Joy Silk Mills, Inc, 85 NLRB 1263 , enfd 158 F 2d 732
(C A D C ), cert. denied 341 U S 914
OZARK MOTOR LINES
reinstatement without prejudice to his seniority or other
rights and privileges. Under these circumstances and in
order to clarify the reinstatement offer, I will recommend
that Respondent offer Camden the same seniority or other
rights and privileges he would have had in the absence of
his discharge. I will further recommend that Respondent
make Camden whole for any loss of earnings he may have
suffered as a result of his discharge, by payment to him of
a sum of money equal to that which he normally would
have earned as wages from May 17, 1966, the date of his
discharge, to August 22, 1966, the date when Camden
received Respondent's offer of reinstatement, less his net
earnings during such period, with backpay and interest
thereon to be computed in the manner prescribed by the
Board in F.W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co. 138 NLRB 716.
Having further found that Respondent refused to
recognize the Union in violation of Section 8(a)(5) and (1) of
the Act, I will also recommend that, upon request,
Respondent recognize and bargain collectively with the
Union as the exclusive representative of all its employees
in the appropriate unit with respect to rates of pay, wages,
hours, and other terms and conditions of employment,
and, if an understanding is reached, embody such
understanding in a signed agreement. Moreover, I would
recommend the same bargaining order even if I were to
accept Respondent's contention that no 8(a)(5) violation
can be found because of an alleged defect in the Union's
request. For, effectuation of the policies of the Act would
still require it in order properly to remedy Respondent's
other unfair labor practices herein found. 15
Because of the character and scope of the unfair labor
practices found to have been engaged in by Respondent, I
will recommend that Respondent cease and desist from in
any other manner interfering with, restraining, and
coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following:
RECOMMENDED ORDER
Respondent, Ozark Motor Lines, West Plains, Missouri,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
General Drivers, Salesdrivers, Warehousemen and
Helpers, Local Union 245, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive representative of
its employees in the following appropriate unit with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment:
All employees of Ozark Motor Lines at its West
Plains, Missouri, terminal, excluding office clerical
employees, guards, professional employees, and
supervisors as defined in the Act.
(b) Discharging any supervisor for failing to induce the
employees to withdraw their authorization cards from or
is See, e g, Northwest Engineering Co, 158 NLRB 624, 629
Bryant Chucking Grinder Company, 160 NLRB 1526,1530
16 In the event that this Recommended Orderas adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
311
support of the above-named or any other Union, in a
manner prescribed by the Act.
(c) Threatening employees with discharge or other
economic reprisals if they did not withdraw their
authorization cards from or support of the above-named or
any other Union.
(d) Promising or offering wage increases , shorter hours,
or any other economic benefits to induce the employees to
withdraw their authorization cards from or support of the
above-named or any other Union.
(e) Interrogating employees with respect to their union
membership, activities, or signing of union cards, in a
manner constituting interference, restraint , or coercion
within the meaning of Section 8(a)(1) of the Act.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively
with the above-named labor organization as the exclusive
representative of the employees in the above-described
unit with respect to rates of pay, wages, hours of
employment, and other terms and conditions of
employment, and embody in a signed agreement any
understanding reached.
(b) Offer to Delbert Camden the same seniority or other
rights and privileges he would have had in the absence of
his discharge on May 17, 1966.
(c) Make Delbert Camden whole for any loss of earnings
he may have suffered as a result of his discharge in the
manner set forth in the section of this Decision entitled
"The Remedy."
(d) 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 determine the amount of backpay.
(e) Post at its place of business in West Plains,
Missouri, copies of the attached notice marked
"Appendix." iS Copies of said notice, to be furnished by
the Regional Director for Region 17, shall, after being duly
signed by an authorized representative of the Respondent,
be posted immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to its employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(f) Notify the said Regional Director, in writing, within
20 days from the date of receipt of this Decision and
Recommended Order, what steps the Respondent has
taken to comply herewith.17
I FURTHER RECOMMEND that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found herein.
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
17 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read. "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, as amended , we hereby notify our
employees that:
WE WILL NOT discharge any supervisor for failing
to induce employees to withdraw their authorization
cards from or support of General Drivers,
Salesdrivers , Warehousemen and Helpers Local
Union 245 , affiliated with International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and
Helpers of America, in a manner prescribed in the
Act.
WE WILL NOT threaten employees with discharge or
other economic reprisals if they do not withdraw their
authorization cards from or support of the above-
named , or any other , Union.
WE WILL NOT promise or offer wage increases,
shorter hours, or any other economic benefits, to
induce employees to withdraw ` their authorization
cards from or support of the above -named, or any
other, Union.
WE WILL NOT interrogate employees with respect
to their union membership , activities , or signing of
union cards, in a manner constituting interference,
restraint , or coercion within the meaning of Section
8(a)(1) of the Act.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of rights
guaranteed by Section 7 of the Act.
WE WILL offer to Delbert Camden the same
seniority or other rights and privileges he would have
had in the absence of his discharge on May 17, 1966,
and will make him whole for any loss of earnings
suffered as a result of his discharge.
WE WILL , upon request , recognize and bargain
collectively with the above -named Union as the
exclusive representative of all employees in the
following appropriate unit with respect to rates of pay,
wages, hours of employment , and other conditions of
employment , and embody in a signed agreement any
understanding reached . The bargaining unit is:
All employees of Ozark Motor Lines at the
West Plains , Missouri , terminal , excluding office
clerical employees , guards, professional
employees, and supervisors as defined in the Act.
OZARK MOTOR LINES
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting , and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board 's Regional Office, Room 610,
Federal Building , 601 East 12th Street , Kansas City,
Missouri 64106 , Telephone FR 4-5282.