Paschall Truck Lines, Inc.

National Labor Relations Board - Board Decisions

Jun 4, 1971

190 N.L.R.B. 691 (N.L.R.B. 1971)

PASCHALL TRUCK LINES
Paschall Truck Lines, Inc. and Teamsters and Chauf-
feurs Local Union No. 236 , affiliated with the Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America . Cases 9-
CA-5563-1-2-3-4
June 4, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
On November 12, 1970, Trial Examiner Eugene E.
Dixon issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease and
desist therefrom and take certain affirmative action, as
set forth in the attached Trial Examiner's Decision. He
also found that the Respondent had not engaged in
certain other unfair labor practices alleged in the com-
plaint and recommended that those allegations be dis-
missed. Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision, and a brief in support
of its exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer and finds that no prejudicial error was commit-
ted. The rulings are hereby affirmed. The Board has
considered the Trial Examiner's Decision, the excep-
tions and brief, and the entire record in the case, and
hereby adopts the findings,' conclusions,' and recom-
mendations of the Trial Examiner except as modified
herein.
We agree with the Trial Examiner that Respondent
violated Section 8(a)(1) of the Act by threatening its
employees with loss of benefits because of their union
activities, by creating the impression of surveillance
through Terminal Manager D'Angelo's statement to
' We hereby correct the following inadvertent error in the Trial Ex-
aminer's Decision Under the heading of "8(a)(3) Conclusions"-"The
Other Reasons," with reference to the discharge of employeess Jerald
Driver, the words "From Driver's October 1965 refusal to take an assign-
ment " should read "From Driver's October 1969 refusal to take an
assignment "
' The Respondent's exceptions, in large part, are directed to the credibil-
ity findings made by the Trial Examiner It is the Board 's established policy
not to overrule a Trial Examiner's resolutions as to credibility unless, as is
not the case here, a clear preponderance of all the relevant evidence con-
vinces us that they are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544, enfd 188 F 2d 362 (C A 3)
691
employee Terry Mott on March 18, 1970, and by un-
lawfully interrogating employees.'
We do not agree with the Trial Examiner that Re-
spondent's speech of March 7, 1970, standing alone,
violated Section 8(a)(1) of the Act.' The Trial Exam-
iner reasoned that the speech exceeded permissible litn-
its of free expression by virtue of (1) repeated threats
of discharge and (2) a statement which created the
impression of surveillance. With respect to the alleged
threats, although the speech did include such warnings,
in each instance they were limited specifically to
defined acts of misconduct which are not protected by
Section 7. The fact that Respondent warned its em-
ployees against engaging in unprotected organizing tac-
tics without coupling such a warning with examples of
protected conduct is not sufficient to convert the warn-
ings into unlawful coercion. Nor does the fact that
Respondent assumed in the midst of a Union's organiz-
ing campaign, and after the Union's demand for recog-
nition, that some employees had been approached by
the Union warrant the conclusion that Respondent, in
effect, told the employees that their union activities
were under surveillance.
We agree with the Trial Examiner that Respondent
violated Section 8(a)(3) of the Act by the discharge of
' Chairman Miller would not adopt the Trial Examiner's finding of un-
lawful interrogation based on a conversation between employee Terry Mott
and Terminal Manager Carmen D'Angelo wherein the latter asked Mott if
he had signed a union card but then retracted his question, telling Mott not
to answer, before Mott had an opportunity to respond
Member Brown would adopt the Trial Examiner's Decision in its en-
tirety Unlike his colleagues, his examination of Respondent President Pas-
chall's speech on March 7, 1970, convinces him that Paschall's threats of
discharge had the reasonable and foreseeable consequence of engendering
a fear in the employees' minds that any kind of union-related activity was
grounds for discharge
Respondent has attempted to insulate his threats from illegality by apply-
ing them to what might be, depending on the circumstances, unprotected
union activity Rather than indulge, at the employees' expense, in such
semantics, Member Brown believes that the Board's proper concern is with
the oft-repeated threat of discharge for engaging in union activity, regardless
of the propriety of such conduct The subtlety of the distinction between
protected and unprotected conduct is lost on the average employee, espe-
cially as Respondent conspicuously failed to illustrate protected forms of
union activity, in the rhetoric of such a speech, and only the connection
between union activity and discharge remains Indeed, as was suggested to
an employee-witness by Respondent's counsel, the use of the word "dis-
charge" did in fact "ring a bell " The inevitable result of such "conditioning"
was to greatly inhibit employees in the free exercise of their statutory rights,
contrary to the provisions of Section 8(a)(1) of the Act.
Member Brown is also convinced that Paschall's statement in the March
7 speech to the effect that some employees had already been approached by
union organizers in the equivalent of telling the employees that Respondent
was surveying their union activities There is no foundation, in his opinion,
for his colleagues' conclusion that the speech was not made under condi-
tions which would suggest to employees that Respondent had acquired
specific knowledge of union activities Certainly any doubts that employees
might have entertained regarding a lack of specific knowledge of individual
union adherents were dispelled a few days later when Driver, an active and
acknowledged union leader, was discharged for an offense that another
employee were merely given "a good rigging" for prior to the advent of the
organizational campaign
190 NLRB No. 108
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Richard Stone, Moses Payne, Jr., Erwin Overcast, Jer-
ald Driver, and Donnie Windsor.'
With respect to Overcast, Driver, and Windsor, Re-
spondent's knowledge of their union activity is estab-
lished by President Paschall's admission that he had an
informant among the employees and that he had
learned as early as February 28 that the employees were
trying to organize a union and were holding a meeting
at the Union's office in Paducah that evening. In addi-
tion, several weeks thereafter five or six of his em-
ployees came to him and told him they had signed
cards for the Union, but wished they had not. Paschall
testified: " . . . I did not fire any of them guys."
1. Erwin Overcast.- Overcast, an over-the-road truck-
driver, was hired on January 13, 1969, and discharge
on March 4, 1970, allegedly for unsatisfactory work
performance.
Overcast signed a union card on February 26, 1970,
and attended a union meeting on February 27. On
March 3, he was assigned a trip to Louisville. On his
return, it appeared that he had brought back the wrong
trailer, and Terminal Manager D'Angelo said "Okay,
I will see you this afternoon." The next day he went to
work at 6 a.m. and, sometime thereafter, was called to
D'Angelo's office. D'Angelo told Overcast that because
of his having previously parked a trailer in the wrong
spot, and his currently bringing home the wrong trailer,
they were going to have to let him go. Overcast told
D'Angelo "Okay. I want it down in writing you know
and I know why I am being fired." D'Angelo replied
"Your background shows up pretty plain."6 In this
connection, the Trial Examiner found that employee
Brayboy had, during the past year, dispatched a St.
Louis load to Memphis by mistake, and, on another
occasion, had dispatched and empty trailer to Mem-
phis, also by mistake, but was not discharged.
In finding that Overcast's discharge was dis-
criminatorily motivated, we rely, as did the Trial Ex-
aminer, on the following factors: (1) the Respondent's
knowledge of union activity at the terminal, (2) the fact
that Overcast was a union adherent, (3) Respondent's
knowledge of Overcast's prior union sympathies, (4)
the fact that Overcast had received no prior warnings
about his work, (5) disparity of treatment, in that em-
' Chairman Miller dissents as to the 8 (a)(3) violations found with respect
to the discharge of employees Overcast, Driver, and Windsor, since all three
were found by the Trial Examiner to have committed acts which, absent a
union campaign , would clearly have justified discipline and, indeed, dis-
charge He would note that the mere fact that there was a union campaign
going on does not immunize employees from discharge Even accepting all
of the Trial Examiner's credibility findings, Chairman Miller does not view
the facts as establishing that the offenses committed by these employees
were a mere pretext for their discharge, particularly in light of the absence
of any evidence as to employer knowledge of the nature or extent of these
three individuals ' union activities
' About 5 years previously, Overcast had belonged to a union and had
been involved in a strike at Paris, Tennessee, some 20 miles away The Trial
Examiner found that President Paschall knew this before hiring Overcast
ployee Brayboy had made similar mistakes but had not
been discharged, and (6) the timing of the discharge,
which occurred the day after the Respondent refused
the Union's certified letter demanding recognition.
2. Jerald Driver.- Driver worked for the Respondent
for about 2Y, years when, on March 11, 1970, he was
discharged, ostensibly for refusing to make a trip to
Georgia for a load of granite.
Driver was hired by the Respondent with the under-
standing that, as a member of the National Guard Re-
serve, he would be free to fulfill his monthly drill obli-
gation and his annual 2-week encampment
requirement. He was the prime union advocate in the
terminal , soliciting cards and arranging and attending
union meetings. In late February 1970, Driver, who
was a local driver, was ordered to go to St. Louis. He
protested, but went. On March 7, the day of President's
Paschall's speech to the employees, Dispatcher Bray-
boy asked him to go after a load of granite in Georgia.
Driver protested and said he was discriminated against.
Driver then called Terminal Manager D'Angelo and
told him that President Paschall had assured him he
was not going to have to go out on the road. D'Angelo
replied that if Driver did not make the trip, "he would
not have ajob and ... was quitting." Driver then asked
D'Angelo to get another man to go after the load and
added that he would be in Monday. On Monday,
March 9, Driver reported for work and noted that the
trailer to be used for the granite run on Sunday was still
in the terminal. Driver worked that day, and that
evening a union meeting was held at his home. Driver
also worked Tuesday, but on Wednesday afternoon
D'Angelo called him into his office and asked him to
report for work at 9 p.m. for a load of granite.' Driver
refused, and, after a heated conversation as to whether
Driver was quitting or being discharged, he was dis-
charged.
In finding that Driver was discrimintorily dis-
charged, we adopt the Trial Examiner's reliance on the
following factors: (1) the Respondent's awareness of
union activity at the terminal, (2) the fact that Driver
was the leading union advocate in the terminal, (3) the
timing of the discharge, which occurred 2 days after the
union meeting at Driver's home, (4) the fact that
Driver had previously refused assignments but was not
fired, and (5) the pretextual nature of the discharge,
including the fact that Driver was an inexperienced
over-the-road driver and not qualified for the long haul.
3. Donnie Windsor.- Windsor was hired on or about
December 15, 1969, and was discharged on March 14,
1970, allegedly for unsatisfactory work performance.
' The Respondent knew that Driver had a National Guard Reserve meet-
ing on Saturday The round trip to Georgia was some 900 miles and would
take an experienced driver from 30 to 36 hours
PASCHALL TRUCK LINES 693
Windsor was an active union adherent, signing a
card on February 21, soliciting at least two other cards,
and attending most of the union meetings. During his
3-month tenure with the Respondent, Windsor had
three accidents, all of them involving buildings or their
appurtenances. The combined estimate for the damage
ranged from $110 to $145. The accidents were appar-
ently caused by faulty equipment. Windsor, apparently,
never had a formal warning about his accidents. On
March 14, Windsor received a note with his check,
stating that he was being discharged because of his
three accidents.
In finding that Windsor's discharge was dis-
criminatorily motivated, the Trial Examiner based his
conclusion, which we affirm, on the following factors:
(1) the Respondent's knowledge of union activity at the
terminal , (2) the fact that Windsor was an active union
adherent, (3) the fact that the accidents were not of
significant consequence, as reflected by the fact that the
combined estimate for the damage ranged from $110 to
$145, (4) President Paschall' s admission that he never
became concerned about the accidents of his drivers
unless they are brought to his attention by his insurer,
and (5) the fact that Windsor was a young and inex-
perienced driver, for whom some allowances could be
made. However, since the insurance company sent a
letter to the Respondent regarding Windsor's accidents
on April 9, which would have resulted in his discharge
by April 11, the Trial Examiner recommended no rein-
statement for Windsor and backpay only from the date
of his discharge through the week ending April 11. We
adopt this recommendation.
Finally, we agree that a bargaining order is war-
ranted in this case.' Members Fanning and Brown
adopt the Trial Examiner's conclusion that the Re-
spondent is in violation of Section 8(a)(5) of the Act
and a bargaining order is warranted to remedy this
violation as well as the concurrent unfair labor prac-
tices which are of an outrageous and pervasive nature.
They believe that an 8(a)(5) finding is appropriate
where, as here, the record is clear that such a violation
occurred, and the Supreme Court in N. L. R. B. v. Gissel
Packing Co., 395 U.S. 575, specifically held that such
a finding was proper.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order of
the Trial Examiner as modified below and hereby or-
Chairman Miller, although dissenting with respect to certain violations,
would concur in the entry of a bargaining order as a remedy for the remain-
ing serious 8(a)(1) and 8 (a)(3) violations As he stated in United Packing
Company oflowa, 187 NLRB No 132, he would predicate such order on
the said violations , not on any superfluous 8(a)(5) finding
ders that the Respondent, Paschall Truck Lines, Inc.,
Murray, Kentucky, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Ex-
aminer's Recommended Order, as so modified.
1. Delete in its entirety paragraph 1(d) of the Trial
Examiner's Recommended Order, and substitute in
lieu thereof the following:
"(d) Threatening its employees with loss of benefits
because of their union activities."
2. In footnote 41 of the Trial Examiner's Decision,
substitute "20" for "10" days.
Substitute the attached Appendix B for the Trial
Examiner's Appendix B.
IT IS FURTHER ORDERED that those portions of the
complaint as to which no violations have been found
be, and they hereby are, dismissed.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in
Teamsters and Chauffeurs Local Union No. 236,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, or any other labor organization, by
discriminatorily discharging employees or in any
other manner discriminating against them in re-
gard to their hire or tenure of employment or any
term or condition of employment.
WE WILL NOT refuse to bargain collectively
with the aforesaid Union as the exclusive bargain-
ing representative of all truckdrivers and dock-
hands employed by us in Murray, Kentucky, ex-
cluding all office clerical employees, guards,
professional employees and supervisors, as defined
in the National Labor Relations Act.
WE WILL NOT illegally interrogate our em-
ployees concerning their union activities.
WE WILL NOT threaten our employees with loss
of benefits for engaging in union activities or join-
ing the Union.
WE WILL NOT create or attempt to create the
impression among our employees that we are en-
gaging in surveillance of their union activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of the right to self-organization, to form, join,
or assist the aforesaid Union or any other labor
organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage
in other concerted activities for the purpose of
collective bargaining or other mutual aid or pro-
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tection, or to refrain from any and all such activi-
ties.
WE WILL offer Erwin P. Overcast, Richard
Stone, Moses Payne, Jr., and Jerald Driver im-
mediate and full reinstatement to their former or
substantially equivalent positions without preju-
dice to their seniority and other rights and privi-
leges and make them and Donnie M. Windsor
whole for any loss of pay suffered as a result of our
discrimination against them.
WE WILL upon request meet and bargain col-
lectively with Teamsters and Chauffeurs Local
Union No. 236, affiliated with The International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclu-
sive bargaining representative of our employees in
the appropriate bargaining unit, concerning rates
of pay, wages, hours of employment, and other
terms and conditions of employment, and, if an
understanding is reached, embody such under-
standing in a signed agreement.
All our employees are free to become, remain, or
refrain from becoming or remaining, members of the
aforesaid Union or any other labor organization.
PASCHALL TRUCK
LINES, INC.
(Employer)
The complaint alleges that Respondent had engaged in and
was engaging in unfair labor practices by various specific
coercive conduct, including its failure to bargain with Team-
sters and Chauffeurs Local Union No. 236, affiliated with the
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (herein called the Charg-
ing Party or the Union) as the bargaining agent of a majority
of its employees in an appropriate unit and by dis-
criminatorily terminating on various dates its employees Er-
win Overcast, Jerald Driver, Donnie Windsor, Moses Payne,
Jr., and Richard Stone, thus violating Section 8(a)(1),(3), and
(5) of the Act. In its duly filed answer Respondent denied the
commission of any unfair labor practices.
Upon the entire record and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I RESPONDENT'S' BUSINESS
Respondent is a Kentucky corporation engaged as a com-
mon carrier in the furnishing of interstate motor freight
transportation service between several States of the United
States. It maintains terminals at various locations in said
States including its terminal at Murray, Kentucky, the only
installation involved in this proceeding. During the 12
months preceding issuance of the complaint, a representative
period, Respondent in the course and conduct of said busi-
ness operations derived gross income in excess of $50,000
from the performance of motor freight transportation ser-
vices between several States.
At all times material herein Respondent has been an em-
ployer as defined in Section 2(2) of the Act, engaged in com-
merce and in operations affecting commerce as defined in
Sections 2(6) and (7) of the Act.
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Room 2407, Federal Office Building, 550 Main
Street, Cincinnati, Ohio 45202, Telephone 513-684-
3686.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE E. DIXON, Trial Examiner: This proceeding,
brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136), herein called the Act, was
heard at Murray, Kentucky, June 15 through 18, 1970. The
complaint, dated May 1, 1970, based upon duly served
charges filed March 11, 1970, in Case 9-CA-5563-1, March
12, 1970, in Case 9-CA-5563-2, March 25, 1970, in Case
9-CA-5563-3 and on April 8, 1970, in Case 9-CA-5563-4,
was issued by the Regional Director for Region 9, (Cincin-
nati, Ohio), on behalf of the General Counsel of the National
Labor Relations Board, herein called the General Counsel
and the Board, respectively.
II THE LABOR ORGANIZATION
Teamsters and Chauffeurs, Local Union No. 236, affiliated
with The International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America at all times
material herein has been a labor organization as defined in
Section 2(5) of the Act.
III THE UNFAIR PRACTICES
A. Introduction
In the first part of February 1970, the Union began an
effort to organize Respondent's Murray operation.' Jesse Du-
Pree, the Union's business agent, testified that he was aided
by two or three employees in this effort-mainly by Jerald
Driver and Charles McClure. A couple of union meetings of
Respondent's employees were held in the union offices at
Paducah, Kentucky, and at least two in Murray-one in the
American Legion Hall in Murray for which arrangements
were made by Jerald Driver (an alleged 8(a)(3) discriminatee
herein) and another at Driver's home. One of the first meet-
ings took place in Paducah on February 28. Twenty to
twenty-five employees attended, the city drivers sitting on one
side and the road drivers on the other.' At this meeting a
group of the road drivers signed authorization cards and
Driver turned in to DuPree a group of cards which had
previously been signed by the city drivers.
' Respondent already was operating under union contracts at its St. Louis
and Louisville terminals
' There is some indication of original reservation by the road drivers
about the Union
PASCHALL TRUCK LINES 695
By March 2 the Union had secured some 24 cards out of
the unit no larger than 37 employees' Accordingly, on
March 2 the Union sent Respondent a certified letter claiming
to represent a majority of "all truckdnvers and dock hands
in (Respondent's) city and road operations, excluding guards,
supervisors, and office-clerical employees as defined in the
National Labor Relations Act" and demanding recognition.
The letter also stated that a union representative would call
on Respondent at 11 a.m. on March 9 "for the purpose of
negotiating a collective bargaining agreement." The letter
was refused by Respondent on March 3' and returned to the
Union unopened. No further attempt was made by the Union
to contact Respondent.
On April 27 the employees went out on a strike-a
majority of them taking part in picketing Respondent's termi-
nal. In the meantime on March 7 Respondent's President
L.W. Paschall made a formal speech to the employees clearly
indicating his opposition to their choosing the Union as their
collective-bargaining agent. Also in the interim Respondent
terminated five union adherents including one of its leading
advocates, Jerald Driver.
B. Credibility
President Paschall was an unconvincing witness to say the
least. His lack of memory on the witness stand belied his
otherwise obvious image of a successful self-made business-
man. The contradictions in his testimony are so numerous
and egregious that no explication or examples are needed to
illustrate it. His intransigence as a witness can be seen from
the following examples: (1) After admitting that he had some-
one from whom he had gotten information about the em-
ployees' union activities he was asked who the person was and
answered, "I think that is irrelevant in this case. How I got
the word I don't think makes any difference." (2) Admitting
that he had received a notice regarding a discharged em-
ployee he was asked who the employee was and his answer
was, "You tell me. You know about it. You tell me." Later
in the same vein he commented, "If you knew about it you
should know who it was. I will answer your questions when
you answer mine. You answer me and I will answer you too."
(3) On another occasion when the General Counsel mis-spoke
and explained to the witness that he had gotten him mixed
up, Paschall commented that that was what he "was trying
to do."
To a lesser extent the same was true of General Manager
D'Angelo. For example he testified that he had been a Team-
ster all his life. When asked if he had any animosity toward
the Teamsters he testified, " . . . if I have, I am sure it is my
own business if I do. I try to keep that to myself right at the
moment."
On the whole the General Counsel's witnesses impressed
me as being frank at time to the point that could be consid-
ered brash, as will be seen. Any question about their tes-
timony directs itself to the accuracy of their recollection and
ability to express themselves as distinguished from any delib-
erate attempt to misrepresent the facts on their part.
' There is a conflict between the General Counsel and Respondent con-
cerning the inclusion of certain of these 37 individuals which will be dis-
cussed in more detail later
' In his brief the General Counsel apparently contends that a second
attempt was made to deliver the letter and that it was again refused on
March 4 While there is some hint of this in the evidence it is not specifically
shown
C. Interference, Restraint, and Coercion
1. The speech
The complaint alleged that L.W. Paschall, on March 7 at
a meeting of assembled employees, told them that Respond-
ent would never recognize the Union, threatened them with
discharge for engaging in union activities, and promised them
benefits and improved working conditions if they did not
select the Union as their bargaining representative. On March
7 Paschall did assemble the employees on the dock of the
terminal' where he read to them a prepared speech. Several
of the employees testified at the call of the General Counsel
about what Paschall said with vague and varying recollec-
tions but with almost unamimous recollection and agreement
that his remarks included a threat of discharge to anyone that
had anything to do with the Union and in lesser unanimity
assurance that he would not recognize the Union.
On cross-examination of these witnesses it was generally
established that Paschall read his remarks from a prepared
paper and at no time did he appear to digress or interpolate
from the prepared text; that the threat of discharge was not
made in the exact terms voiced in the witnesses' testimony but
were reflections of the witnesses' interpretation of the words
used by Paschall; and that Paschall's comments were
couched in " legal language ." Furthermore, practically one of
the General Counsel's witnesses would deny that Paschall's
comments were in accord with the excerpts quoted to them
from the speech by Respondent' counsel and one or two
agreed that the quotations were in fact what Paschall said on
that occasion.'
On this evidence (confirmed by Paschall in his testimony)
I am convinced and find that Paschall did not deviate in any
substantive way from the wntten text in his remarks to the
employees and that he did not make the specific illegal re-
marks attributed to him in his testimony. In so finding, how-
ever, I do not mean to imply that I believe that the General
Counsel's witnesses were deliberately misrepresenting what
Paschall said. As shown on the whole they impressed me as
being honest and forthright witnesses. What they testified to,
as some of them admitted, was how they interpreted and
understood Paschall's remarks. As Respondent's counsel
suggested to at least one of them, repeated use of the word
"discharge" by Paschall "rang a bell."
Nowhere in the complaint nor in the hearing before me was
there any allegation or contention that the written speech (a
copy of which was introduced in evidence) was coercive or
intimidating within the meaning of Section 8(a)(1) of the Act.
In his brief, however, the General Counsel for the first time
makes such a contention. For the reasons that follow I agree
with this contention and find that the speech was coercive and
interfered with the rights guaranteed in the Act and violated
Section 8(a)(1). The failure to plead the illegality of the
speech here did not prejudice Respondent in its prepraration
for or trial of the case. There was no question that the speech
was made, as I find, as it was written.' Thus, the matter is
before me identically as any fully litigated unpleaded allega-
tion on which the Board with court approval has repeatedly
March 7 was a Saturday and not a workday. The employees were asked
to come in specifically for this occasion
For example, Earme Sheridan "believe(d)" that Paschall said that "un-
ion organizing activities will not be allowed on the job and anyone who
carves on such activities (and) in doing so neglects his work or interferes
with others work would be subject to discharge." Richard Stone also conjec-
tured that the foregoing was the king of legal language he previously testified
that Paschall had used.
It was Respondent that put the speech in evidence, because of its length
I do not include it in the text but do incorporate it here as Appendix A
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made unfair labor practice findings against Respondents. The
only disadvantage to Respondent here is its not being able to
brief its position on the matter to me,' a deficiency I am sure
it will ably make up in its appeal to the Board
Section 8(c) of the Act provided:
The expressing of any views, argument, or opinion, or
the dissemination thereof, whether in written, printed,
graphic, or visual form, shall not constitute or be evi-
dence of any unfair labor practice under any of the provi-
sions of this Act, if such express contains no threat of
reprisal or force or promise of benefit.
Assuming that the Union connected examples of conduct
about which Respondent made repeated warnings of dis-
charge may have been the kind of conduct for which Re-
spondent could discharge employees without running afoul of
the Act, I have difficulty seeing how such warnings can be
construed as "views, argument, or opinion," entitled to pro-
tection in the context of the surrounding facts. Here there is
no evidence that Respondent or its employees were experienc-
ing or facing the possibility of any of the union connected
conduct about which Respondent was threatening the em-
ployees with discharge. Indeed certain of Respondent's evi-
dence would have it that Respondent had no knowledge of
the union activities of its employees whatsoever.' Thus Re-
spondent's repeated threats of discharge seem gratuitous un-
less the purpose was to drum into the minds of the employees
("nng the bell") that any kind of union connected activity
(legal or otherwise) was grounds for discharge.
To avoid a misunderstanding by the employees in this
connection it seems to me that the least Respondent could
and should have done was to have balanced its warnings
regarding the kind of union activity that could lead to dis-
charge with a statement to the employees of examples of
union conduct that under the Act they were entitled to en-
gage in without fear of reprisals.
Another comment in the speech that clearly was improper
was the following excerpt:
Now before long you may be approached by a union
organizer, or by someone acting on behalf of the union,
for the purpose of getting you to sign a union card Some
of you have already been so approached. (emphasis sup-
plied)
Such a remark is tantamount to telling the employees that
their union activities are under surveillance and violates Sec-
tion 8(a)(1).
2 Additional 8(a)(1) conduct
Terry Mott testified about a conversation he had with
D'Angelo on March 18 as follows.
Well, he called me to his office because it was cold on the
dock and he asked me if I wanted to come in. I went in
the office I went in and sat down and he asked me if I
signed a union card. I was fixing to answer him but he
told me not to because he changed his mind, I guess. The
next thing he said was some of the guys were trying to
get a union organized and he said this would not work.
He said it could not work. Then he said, "I think you
have to be 21 before you can sign a union card." I said,
"I didn't know how old you had to be to sign a union
card." And then he looked around to see if Richard
Stone was working on the dock that day and he looked
around to see if he was on the dock. They told me, he
said, "Richard Stone was a stupid kid for signing a union
Although opportunity was afforded counsel to file briefs , only the Gen-
eral Counsel did so
' Moreover there was testimony by the employees that they were trying
to keep Respondent from learning of their organizing efforts
card." ... the last he told me to keep ... in confidence.
On direct examination D'Angelo was asked if he had told
anyone that Stone was a "stupid kid" for signing a union
card. He answered as follows:
No, I did not say that. I never mentioned anything about
the union. The only thing I mentioned to this young
chap he is 19 years old and I says to him, frankly speak-
ing, did you sign a card and he said, "I will never sign
a card as long as I live." I said you know you have to
be 21 years old in order to work for a freight company.
That is all I said to him.
I credit Mott's testimony and find that by his interrogation
of Mott and by his statement regarding Stone's signing a
union card (thus creating the impression that the employees'
union activities were under surveillance by Respondent)
D'Angelo interfered with the rights of Respondent's em-
ployees in violation of Section 8(a)(1) of the Act.
Rube Ward testified about a conversation he had with
Paschall on March 17 as follows:
On the 17th I was needing $100 and I went to ask about
my vacation coming up. I was talking to D'Angelo about
it and he said see L.W.
L.W. said you got a pretty good memory it was time to
get your vacation. He said I could get my money Satur-
day morning when I got paid. He talked on about it and
L.W. hinted about the union and he told me what they
were hoping to do, give me a new truck. What he done
for me.
Ward continued his testimony telling how Paschall talked
about the favors he had done for the employees and how he
reminded Ward that he had let Ward work on the dock over
a year when he had lost his driver's license." Ward further
testified that Paschall "said a man talking about the Union
or something could be fired" and "something about you bet-
ter watch how you sign a card or something ""
On direct examination when he was asked to tell about his
conversations with Ward on March 17 Paschall testified as
follows:
I tried to explain to him just like I did to Mose. It looked
like we got along allright, and we needed to get along
among ourselves and try to improve our jobs. The more
money that I could make the more I could pay them and
let's try to improve everything all the way around. I said,
before you sign anything I would be careful what I was
doing.
In addition, Paschall denied telling Ward that "someone
could be fired" and also denied saying anything to Ward
about union cards. He was then reminded by counsel about
his having testified about telling Ward to be careful what he
signed and was asked if "there was any special reason for
telling Rube Ward something like that." His answer was,
"No, sir." I credit Ward and find that Paschall's warning to
him to "be careful" what he was signing coupled with a
recitation of past favors Ward and others had received from
Respondent was an implied threat of a loss of such favors if
10 Ward further testified that he had just gotten his license back in the
summer of 1969 after having lost it for 6 months and then having an
additional 6 months revocation added During this time he worked on the
dock When his license was restored Respondent gave him a new truck and
put him back delivering freight
'i On cross-examination it was brought out that in an affidavit he had
given the Board Ward had stated On March 17 I was in Paschall's office
to get my vacation check in advance He was telling me all the favors he had
done for me and he said anyone who wanted to work for him had better
watch what they was signing "
PASCHALL TRUCK LINES 697
Ward signed a union card. Such a threat of course violated
Section 8(a)(1) of the Act.
According to Ward's further testimony Paschall spoke to
him and James Hardin on the dock on March 24 as follows:
He came on the dock to me and James Hardin. He said,
"I hear you are going to picket me. We are going to
work." He says, "I have help coming in," his daddy-in-
law and two or three more. And Mr. Hardin said, "Yes,
I will be in. I will go down and get my new shotgun."
L.W. said, "There won't be no use of that." I ain't said
nothing yet that I would or wouldn't.
According to Ward, Paschall also told them, "Come in or you
will be laid off or discharged." On cross-examination Ward
testified that Paschall said, "If you fellows want a job you
better come through the picket line and come to work."
In his testimony Paschall admitted telling Ward and
another employee that he had heard that `they were going to
put up a picket line." But he denied asking them if they were
going to come in to work or telling them that anyone who did
not come in would be discharged. According to Paschall he
"just said if they wanted to work there would be a job ... for
them. . we will need you.... " I credit Paschall here.
Ward's testimony that Paschall said, "If you want a job you
better come•through the picket line and come to work" could
easily have been said exactly as Paschall claims. At best
Ward's version is questionable as a violation.
Earnie Sheridan testified credibly and without denial about
a conversation with D'Angelo on March 7 as follows: It was
out in the garage. D'Angelo told Sheridan he "was trying to
figure (him) out." Sheridan "didn't say much." D'Angelo
"said things were going to get better.. he thought from then
on because he was aiming to get J. W. Rhoads to run granite"
so that the road drivers who wanted to haul freight would not
have to haul so much granite. Sheridan's further testimony
reveals that the road drivers disliked the gravel runs and in
fact he was complaining to D'Angelo on this occasion about
having to make a granite run. I see nothing wrong with the
foregoing.
D. Discrimination
1. Erwin Overcast
Erwin Paschall Overcast worked for Respondent as an
over-the-road driver from January 13, 1969, to March 4,
1970, when he was discharged. He signed a union card on
February 26 given to him by Jerald Driver (who in the com-
pany of Charles McClure and Joe Brannon had come to his
home the evening of the 26th) and attended one union meet-
ing-the initial one held at Paducah on February 27. Accord-
ing to his credited and substantially undenied testimony at no
time did he receive any warnings about his work.
Regarding the circumstances surrounding his discharge he
testified as follows: On March 3 he was assigned a trip to
Louisville. The number of the trailer he was to take to Louis-
ville and the number he was to haul back were listed on his
assignment card. The morning following his return from
Louisville he got a call from Carmen D'Angelo who said,
"Pat, look at your card and see what number you was to bring
back from Louisville." Overcast looked at his card "and im-
mediately told Mr. D'Angelo (he) had brought the wrong
trailer back." D'Angelo said "Okay, I will see you this after-
noon." When he went in that afternoon dispatcher Goody
Brayboy asked him (not angrily) if he needed glasses. Noth-
ing more was said to him except D'Angelo asked if he knew
he had brought back the wrong trailer. The next day he went
to work at 6 o'clock and waited around with the other drivers
for assignments to be made. Brayboy came down and handed
him his assignment card and about that same time D'Angelo
called to him saying he wanted to see him in the office. In the
office D'Angelo told him that because of his having previ-
ously parked a trailer in the wrong spot and his currently
bringing home the wrong trailer they were going to have to
let him go. He told D'Angelo "Okay, I want it down in
writing you know and I know why I am being fired." D'An-
gelo replied, "Your background shows up pretty plain.""
According to Overcast's further undenied and credited tes-
timony, during the year or so he had been with Respondent
Brayboy had dispatched a St. Louis load to Memphis by
mistake and on another occasion had dispatched an empty
trailer to Memphis also by mistake."
On cross-examination Overcast testified that Paschall had
spoken to him about a trailer that was lost in Memphis and
had asked him if he had "parked it at Pic-Walsh or some-
thing." He told Paschall that he "pulled it in front of the
building where we always park them." Nothing else was said
to him about the matter. It appears from Overcast's further
cross-examination that he had a letter from his doctor saying
that he should not drive for a month because of hemorrhoids
but that since he could not afford to be off for a month he had
asked if he could work on the dock. D'Angelo had told him
he would see if it could be arranged. When Paschall rejected
his request D'Angelo had told him that "He didn't see why
(Overcast) couldn't work on the dock, but Mr. Paschall was
the boss "
In his testimony Paschall stated that Overcast was a good
driver but that he did not think his work was satisfactory in
every way. He did not know if D'Angelo had given Overcast
any warnings or not. As to why Overcast was discharged
Paschall testified:
Well we had a sign up there that sign said not to drop
trailers on any other personal property. He was at Mem-
phis and dropped a trailer on a Pic-Walsh lot and we did
not know it was there for 3 days and was to be at New
Orleans on the boat. The plant called us and said they
wanted to know where their freight was and they had not
even found the trailer. He dropped the trailer on some-
body else's lot.
Paschall further testified about this matter as follows:
We put up a sign and it said not to drop anything at
Gordon's because they are right next to us at Louisville
and he dropped one at Gordon's and they would not let
us come get it until we called and they talked to me and
we pulled a load of freight home that was carried up the
night before that was carried up to Louisville and
brought the same freight back that was carried up Car-
ved the wrong trailer. That is why he was fired.
D'Angelo in his testimony confirmed the parking on the
Pic-Walsh lot of a trailer by Overcast stating that it caused
trouble and confusion and cost the Company some money."
He also testified that he was the one who discharged Overcast
because he had a call from his dispatcher concerning Over-
cast's having brought the wrong trailer back from Louisville.
It was on that account that he discharged Overcast. From
D'Angelo's further testimony it appears that Overcast had
never been warned about these things. He later testified that
Overcast had been talked to a few times by him about running
too fast and not paying attention to what he was doing. He
" About 5 years previously Overcast had belonged to a union and had
been involved in a strike at Paris, Tennessee, some 20 miles from Murray.
According to Overcast's credited testimony the fact that he had been in-
volved in this strike was made known to Paschall before Overcast was hired
by Respondent
" Although Overcast admitted that he did not know what if any discipli-
nary action was taken against Brayboy for his error, D'Angelo testified that
he talked to Brayboy in the office about it and "gave him a good rigging "
" No details were supplied regarding this
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also denied telling Overcast at the time of his discharge that
his background was showing and testified that he had no idea
that Overcast was in the Union. I credit Overcast here.
2. Jerald Driver
Jerald D. Driver had worked for Respondent approxi-
mately 2Yyears when he was discharged on March 11, 1970,
ostensibly for refusing to make a trip to Georgia for a load
of granite. Driver was described by several as one of the
leaders of the Union. He attended the first meeting on Febru-
ary 28 at Paducah and quite a few others. He was active in
getting cards signed and made arrangements for most of the
union meetings in Murray and notified employees to attend
-talking to them at their homes or during lunch periods.
Two days before he was discharged a union meeting had been
held at his home.
According to Driver's testimony he had been hired by
Paschall as a freight checker with the understanding that as
a member of the National Guard Reserve he would be free
to fulfill his monthly drill obligation and his annual 2-week
encampment requirement. About a year after he was hired
Paschall told him that he "wasn't doing the job (he) was hired
to do" and that his duties as checker would be taken over by
Hal Underwood, who would have the title of dock foreman.
Notwithstanding that Driver got a raise at that time, he
considered this action a demotion." At the time of his dis-
charge Dnver had been working as a local driver operating
within a radius of 50 miles of Murray. Occasionally, however,
he also made a road trip when asked.
About 2 weeks before his discharge, he "was ordered, not
asked" to make a trip to St. Louis, which he did after indicat-
ing to D'Angelo that he did not want to go.16 On March 7,
the day that Paschall had the employees come in to hear his
speech, Driver was called by dispatcher Brayboy and asked
if he would come out to the terminal. When he said that he
would, there was a pause in the conversation and he could
hear someone talking in the background. Brayboy then con-
tinued, saying that he needed him to go after a load of granite
in Georgia." When he had gotten all the information he
needed in order to make the run, he told Brayboy that he
"thought (he) was being discriminated against by being
asked" and asked Brayboy why he had not been requested
prior to this time to make a gravel run to Georgia. Brayboy
said that he had no one else who could go. Driver did not say
that he would go but ended the conversation by his telling
Brayboy he understood and had the information.
About an hour later Driver called D'Angelo telling him
that he had been asked to go after a load of granite and
informing him that he could not do so as this was breaking
an agreement between him and Paschall that he would not
have to go out on the road. D'Angelo asked if he had this
agreement in writing and Driver replied, "No. Maybe some
day we will." D'Angelo replied that if he did not make the
trip he "would not have a job and ... was quitting." Driver's
reply was that he "definitely could not and would not work
or go after this load and ... was telling him in time that he
could secure another driver in order to go get the load.""
Driver further told D'Angelo he would report for work Mon-
In his testimony Paschall implied that he did not so consider it
" On cross-examination Driver testified that one of the reasons he did
not want to go out of town or be out overnight was because of the possibility
that he might be called up by the guard at any time in an emergency
" At no time had Driver ever made a trip to Georgia for granite nor had
he ever been asked to do so But on one occasion he did haul a load of granite
to Clarksville
" He was to leave Sunday afternoon at approximately 6 o'clock In the
2'/years that he worked for Respondent he had never worked on a Sunday
day and if they wished to discharge him they could do so "at
this time."
Driver reported for work on Monday, March 9. D'Angelo
asked him to check off the St. Louis trailer which he did. At
this time he noticed that the tractor that he was supposed to
have taken for the granite run on Sunday was still sitting in
the terminal. He checked off the St. Louis trailer and gave
D'Angelo the checkoff sheet and then went about a normal
day's work. That night a union meeting was held at Driver's
home.
Driver also worked the following day, Tuesday, without
comment or incident. On the next day, Wednesday, after
checking off the freight he was asked to take a load of freight
to a local company which he did. This took him about 30
minutes or so. When he got back he was asked to clean up
the dock, which he did. That task completed, he went to
lunch and returned at approximately 1 p.m. At that time
Brayboy asked him to clean up the back, which he was in the
process of doing when D'Angelo asked if he could see him in
the office. Just prior to this he noticed Brayboy, D'Angelo,
and Paschall engaging in a conversation about 20 feet from
him. This was about 10 minutes or so before he was called
into the office.
About what took place in the office, Driver testified in
substance as follows: D'Angelo asked him to take a seat. He
said "I want you to go home at this time and report back to
work tonight at 9 o'clock ... We got a load of granite and
you are the only man we have to send." D'Angelo told him
what number tractor he was to take and that he would be
going with Bill Herndon , who was an experienced granite
hauler. Driver just sat and looked at D'Angelo. D'Angelo
asked him if he understood. Driver said, "My position hasn't
changed . I can 't go after this load of granite ," " and added,
` .. if you are going to fire me I would like to have my check
before I leave." D'Angelo said , " . . . we are not going to fire
you. You are quitting ." An argument then ensued as to
whether Driver was quitting or being fired. Driver finally
asked for his check if he was going to be discharged. D'An-
gelo said he would get the check and went into Paschall's
office. He returned with the check and offered it to Driver but
Driver refused saying, "You've yet to tell me I am fired."
D'Angelo said "you are not fired ... you quit." Driver said,
"I can't accept that check. I want to go out on the dock or
anything else I normally do around here and work." D'An-
gelo said , "don't stand there and tell me you are not refusing
to go to Georgia ." Driver said , "No, I am not refusing , I can't
go." Finally, D'Angelo said, "Are you going to Georgia after
this load of granite?" Driver said, "No." D'Angelo said,
"You are refusing." Driver said, "If that is the way you are
going to have it, I am refusing." D'Angelo then looked at
Brayboy and Underwood and said , "Did you hear this man
refusing?" When they indicated agreement D'Angelo said to
Driver "you are fired" and presented him the check. Before
he took the check Dnver said, "you mean I am out of a job?"
D'Angelo repeated, "You're fired." At this point Driver ac-
cepted the check and with no more comment left the building.
There is no essential conflict with the foregoing testimony
by Driver in any of Respondent 's testimony except that Pas-
chall denied that there had been an agreement that Driver
was not to be required to make road trips20 and D 'Angelo
" Prior to this time Driver had informed Brayboy that he was going to
attend a National Guard drill the following Saturday
10 That there must have been some understanding regarding a limitation
on the scope of Driver 's duties originally would seem to be the implication
from Paschall's testimony that when he made Hal Underwood dock foreman
he called Driver to the office , gave him a raise, and told him that he would
now "have to do things (he had) never done before " In this connection
PASCHALL TRUCK LINES 699
denied that Driver , when he said he had nothing in writing,
had added that "maybe some day (they) would ." However,
with respect to the matter of granite runs in general and the
particular ones in question the following evidence was ad-
duced : Respondent had a contract underwhich it had been
operating for several years to haul granite from Georgia.
Orders would go direct to Georgia from the buyers. Upon
receipt of an order Georgia would put in a request to Re-
spondent for a truck and Respondent would send a truck as
soon as possible . The roundtrip was about 900 miles and
normally would take an experienced driver 30 to 36 hours.
The evidence shows that the granite runs were not generally
welcomed by the drivers ." According to Sheridan 's undenied
and credited testimony there were several complaints about
having to go on the granite runs and the men "Liked to get
out of them as much as possible."
About the first granite run request Respondent made to
Driver, D'Angelo testified: "Goody (Brayboy) told me he
needed a granite man. I asked him who was available, and he
told me. I said send Jerald Driver ." D'Angelo was then asked
who Brayboy had indicated was available and he answered,
"He told me Jerald Dnver was the only one available at the
time." He was then asked if he needed someone "to go then"
his answer was, "We needed someone to go later . I needed
him to go Sunday night ." Notwithstanding the claim that no
one else was available D'Angelo further testified that some-
one else was sent , although he did not remember who it was.
In his testimony D'Angelo also admitted that on the occasion
of Driver 's refusal of the second granite run assignment he
voiced concern about being able to get back on time for his
Saturday morning Reserve meeting.
D'Angelo also testified credibly and without essential
denial by Driver about an occasion in October 1969 when
Driver had refused to take a bob truck load out. D'Angelo
had Driver, Brayboy, and Underwood in the office on this
occasion about which he testified as follows:
I told (Driver) we are here to do a job and anything that
has to be done has to be done. He said he was not hired
to be a bob truck driver , he was hired to be a trailer
driver ... If he is not able to drive the truck I will get
your check because we don 't need you . I got his check
and I brought it in and we sat down and talked about it.
I gave him another chance on it. I tore the check up. I
gave it to the office . We gave him another opportunity.
In addition to the foregoing , Driver testified that about a
week before he was discharged he had a conversation with
D'Angelo in which the latter said that "the place had been
sold." Driver laughed but said nothing . About an hour later
D'Angelo made the same remark and this time Driver com-
mented to another employee, "Maybe the next management
will be better to negotiate with ." Driver also testified that 2
or 3 days before his discharge he had seen a list of drivers who
were eligible to haul granite posted on the bulletin board. His
name was not on the list . In his testimony, D'Angelo at first
denied there was any such list then admitted that Respondent
"had a list on the bulletin board to use all our men for
granite." On this testimony I credit Dnver.
D'Angelo was asked on direct examination if he knew of any agreement
with Driver about not being sent out on the road and his answer was, "I have
never had any trouble with Jerald Driver " When the question was repeated
to him he disclaimed any knowledge of such an agreement
" When it was suggested to Driver in the form of a question that the
drivers did not like the gravel runs he explained , " I would not say they were
too thrilled about it, being out all week and not making more money than
the rest being at home with their wives I do not think they would be too
happy about that "
On cross-examination Driver summarized his reasons for
refusing the granite runs: The first time he refused was be-
cause he felt he was being discriminated against ; the second
was because he had a guard dull scheduled for 8 :00 a.m.
Saturday , March 14 , and in addition to feeling discriminated
against he was concerned that the trip to Georgia "would get
(him) in trouble with (his) reserve obligation ." In this connec-
tion he testified that two of his fellow reservists had been sent
to active duty for failure to attend drills on time . He explained
that three absences from the drills would result in an assign-
ment to active duty . Admitting that he had not yet missed
once he quickly added that he had no intention of getting
"close to the line."
3. Donnie Windsor
At the time of his discharge on March 14 , 1970 , Donnie.
M. Windsor had been a local delivery driver of some 3
months' tenure with Respondent . Windsor signed a union
card on February 21 at his home , which Jerald Driver filled
out for him , and attended most of the union meetings, includ-
ing the one at Paducah on February 28 and another one at
Driver 's home sometime in March . Windsor helped get vari-
ous cards signed including those of Lindy Paschall on Febru-
ary 21 and Richard Stone on February 27.
During his 3 months' tenure with Respondent Windsor
had had three driving accidents-all of them involving colli-
sions with buildings or their appurtenances . About these he
testified on direct as follows: The first one involved backing
into the overhang on a building which he could not see be-
cause his right hand mirror was out of line . According to
Windsor , he asked D'Angelo and the mechanics several times
to have the mirror "straightened as soon as they could get to
it and everybody ignored it ." The second accident also in-
volved backing into an overhang on a building . On this one
D'Angelo came out to investigate and told him when he came
in to turn in his insurance report. No member of management
said anything to him about the first accident and nothing was
said to him by Paschall about the second.
Cross-examination of Windsor about these accidents re-
vealed the following : He never had a warning about his acci-
dents and to his knowledge was never told to be more careful.
His accidents were caused by faulty equipment , and if he were
to continue working with that same equipment he would
"definitely" have another accident within 10 days. Notwith-
standing that he "kept harping " about the repair of his faulty
equipment , in none of his written reports on the three acci-
dents was faulty equipment mentioned . On at least one of the
accidents , according to Windsor's further testimony, he
pulled up and looked at the place he was backing into before
he started backing. Windsor was not sure if all three accidents
occurred in the same truck; in any event if the last one (which
occurred on March 1322 and involved backing into a sign on
a theatre) occurred in a different truck that truck had the
same mirror problem as the other truck. Of the three acci-
dents Windsor testified that two were not his fault but one
could partially have been his fault.
As to his discharge Windsor testified that on March 14 he
got a note with his check stating that he was being discharged
because of his accidents , the dates of which were specified.
When he told D'Angelo that he was being discharged because
of his accidents D'Angelo said that he knew nothing about
it until a few minutes before. Windsor told D'Angelo that he
did not believe the accidents were the reasons for his dis-
1 1 Windsor testified that it was on February 24 The accident report he
signed shows that it occured on March 13
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge. D'Angelo "kind of dropped his head" and said,
"Well, I don't know."
Paschall testified that Windsor was discharged because he
had three accidents. He further testified that he knew nothing
about the extent of the damage involved. He also testified that
he does not get "too much" concerned over accidents unless
he hears from the insurance company about them. He denied
that Windsor ever said anything to him or anyone else about
the condition of the mirrors and in any event maintained that
they were not out of line as claimed by Windsor.23 As for
Windsor's testimony that he was not reprimanded or warned
about his driving Paschall testified as follows:
He came by one day on 76 and I would say he was
running about 60 miles an hour. I went in and told D',
right then I said, when he comes homes we got to talk
to him. When he came in he told me he had another
accident. I kind of got on him right there in the service
station. Right there where the heater is. I will never
forget it. I went upstairs and I told D ', it is too late, he
has already had another. He said he talked to him. I did
not hear D' talk to him but I talked to him. That was
the second one ... I told him we would have to cut this
out, we couldn't contend with that and also slow that
truck down.
I am not inclined to believe that Windsor did not have
some critical comment from Respondent somewhere along
the line about his accidents. Nor do I believe that the mirror
on Windsor's truck was as much out of line or as much at
fault for his accidents as Windsor would have me believe.
4. Richard Stone
Richard Stone started working for Respondent January 5,
1970, and was terminated on April 6, 1970. About his union
activity Stone testified: At the request of Driver, Stone signed
a union card on February 27 at Chuck McClure's house.
Driver filled out the card for him. Stone attended several
union meetings including one at the Holiday Inn in Murray
and a "few" at Jerald Drivers' house. He also joined the
picketing when the Union went out on strike on April 27.
Stone's father had been dock foreman for Respondent and
at one time was receiving workmen's compensation through
Respondent's employment He "advised" Stone to forget the
Union and told him that he "would never work under Pas-
chall Truck Lines again because (he) signed a union card."
This comment by Stone's father was made after the latter had
engaged in several conversations over the telephone with Pas-
chall.
About his job and its termination Stone testified- When he
started working for Respondent, Stone was kept busy on dock
work but later began a bob truck run to Fulton, Kentucky,
and was driving full time when terminated. On April 6 he
began work as usual , breaking down trailers and separating
them from town-to-town. When he had loaded his own truck,
terminal manager D'Angelo told him and Moses Payne to go
out and load some granite . When he came back from that
assignment he found that Chuck McClure was taking out the
truck he was supposed to be driving. Stone thought that this
was odd but said nothing. Instead he and Payne cleaned up
the dock and did a few odd jobs until he was about to leave
for lunch. At that point Hal Underwood, the dispatcher said,
"Wait just a minute, I have something here for you someone
told me to give you." At this he was handed an envelope that
had his check and a letter in it . The letter (signed by Paschall)
said that because of a lack of work his employment was being
terminated as of that time.
On cross-examination Stone testified that Respondent's op-
eration was so small that the dock work was done by the city
drivers. He also admitted that he knew that Respondent was
not getting freight out of St. Louis because of a strike there
and that Respondent had "lost some of (its) Mayfield au-
thority and weren't getting a lot of freight out of Mayfield."
He would not deny that work had "slacked off out there" and
that he did not have as much work at the time of his termina-
tion as he had when all terminals were operating.
Regarding the employment of Stone, Paschall testified:
I never really needed Richard in the first place. I hired
him more through sympathy than anything else. I did
not even have a job. I told him I would try to make him
one and that is what I tried to do.... I thought he was
fixing to get married. I knew the boy needed a job. Me
and his daddy was real good friends. That is the reason
I hired him.
According to Paschall's further testimony Stone (who
worked mostly on the dock and whose work was satisfactory)
was discharged because "freight was slowing up" and he was
the youngest man in seniority. Paschall testified in effect that
he did not know what Stone's attitude was about the Union
(presumably at the time of his discharge) and that as of the
time of the hearing he still had no idea whether Stone was a
supporter of the Union or not. Notwithstanding this tes-
timony he also admitted on cross-examination that he had
seen Stone on the picket line. Paschall denied that Stone's
father was helping Respondent to defeat the Union and tes-
tified that "he just tried to help me out because I had been
good to him."
5 Moses Payne, Jr.
Moses Payne worked for Respondent from January 1968,
to April 6, 1970, when he was terminated On March 27,
1970, Payne had lost his driver's license through an accident
involving his own automobile and not connected with his
work. Up to that time and for about a year prior thereto
Payne had been a truckdriver for Respondent on city runs,
as distinguished from longer distance over-the-road driving
Admittedly Payne's work was not only above reproach but
he was considered to be an excellent worker by Respondent.
After he lost his license Payne made several traps to Mayfield
with another driver and worked approximately 2 weeks on
the dock before his termination.
At the request of Jerald Driver, Payne had signed a union
card at his home on February 25 and had attended several
union meetings including the one on February 28 at Paducah.
After he lost his license according to Payne's testimony he
had a conversation with Paschall in the office in which he
asked Paschall if he had heard anything about his license."
Payne replied that he had not, but added that he had "heard
the boys are going to have a walkout on me." Payne said that
he did not think so-that he had not heard anything about
it. Paschall said , "Yes, I think they are going to walk out on
me due to this union," and added, "I don't think you had
anything to do with it." Payne said , "Well, Mr. Paschall, if
you are asking me if I signed a union card, yes sir, I did."
Paschall said , "Well, if you have, that is your privilege."
About a week after he began working on the dock, accord-
ing to Payne's further testimony, he had a conversation with
D'Angelo about which he testified credibly and without
denial as follows:
We were unloading some freight off a trailer and he said,
"Moses, I would like to talk to you." He says, "I would
like to talk to you like .. you was my son." He said,
" Respondent's offer to produce the trucks for my view was not accepted 24 Paschall was trying to get Payne's license reinstated
PASCHALL TRUCK LINES 701
"About this union," he said, "You should think about
the people that's furnishing you a job Think about the
people that is furnishing your paycheck everyday."
Payne said nothing and just turned and walked out.
About his termination Payne testified as follows:
On April 6 that morning I went to work about 11:30 I
was up on the dock and Hal Underwood says, "I have
got something I want to give you." Of course, I did not
know what it was at that time but he gave me a letter
. he did not say anything else It was from Paschall
Truck Line and it had my check in there and a slip of
paper in there said, "because of the lack of work we will
have to terminate your employment today on April 6."
Prior to this Payne had no word of any impending discharge.
Like Stone, Payne admitted that the volume of freight was
down some at the time of his discharge but he did not know
how much.
Respondent's defense to Payne's discharge was that be-
cause of the reduction in the volume of freight and the loss
of his driver's licence there was not enough dock work to
require his services. In his testimony Paschall denied having
a discussion with Payne about the Union and further denied
that Payne ever said anything to him about a union card. I
credit Payne.
E 8(a)(3) Conclusions
1. Knowledge
Apparently Respondent takes the position that it had no
knowledge of the union activity or support of any of the
alleged discnminatees at the time they were terminated and
thus cannot be charged with a violation of the Act in that
connection. In my opinion the record as a whole refutes such
a position. Thus, as shown in Paschall's reluctant, inconsist-
ent, and intransigent testimony, he had an informant among
the employees and learned on February 28 that the employees
were going to try to organize the Union and that they were
having a meeting that night in Paducah where the Union's
office was located. He thereupon called Assistant Office
Manager Linda Waugh at her home to tell her about his
information. According to Paschall, in addition to his origi-
nal source of information about 2 weeks after February 28,
five or six employees who had signed authorization cards
came to him.25 About this he testified:
Some of them told us they signed cards and also stated
they wished they hadn't. They did not know what they
could do. I think one of them wanted me to write a letter
in for him I said I can't furnish you a stamp or even a
pencil. It is something you have to do on your own.
They asked me what they could do. They said they had
their cards, but I did not fire any of them guys
Another indicia of Respondent's knowledge appears in
Paschall's speech of March 7 when he told the employees that
some of them had already been approached by the Union or
its supporters to sign authorization cards. In view of the
foregoing and considering the small size of Respondent's op-
eration I am convinced and find that Respondent had knowl-
edge of the union activity of the discriminatees at the time
they were discharged.
" In his direct examination Paschall had put this date as 2 weeks after
his speech On cross-examination he put it at 2 weeks after February 28
Either way it is clear that this was before the discharge of Payne and Stone
and considering Paschall's reliability as a witness could very well have been
prior to discharge of Driver and Windsor
2. The Volume of business
The Company adduced evidence showing the dollar
volume of business for a comparable period in 1968, 1969,
and 1970. Comparing the 3-month period of February,
March, and April" as a whole for those 3 years (as distin-
guished from comparing each month separately) we find that
instead of a decline of total business in 1970 there was an
increase over each of the preceding years. By comparing the
corresponding months individually for each year we find that
the volume of business for February and for March of 1970
exceeded that of February and March of the 2 preceding
years. The only month of the 3 that shows a decline in com-
paring all 3 years was the month of April 1970, which showed
about a 20 percent decrease from the year before and about
a 15 percent decrease from the month before. The difficulty
with these figures from Respondent's point of view is that, at
the time Stone and Payne were discharged, the month of
April was just beginning and April figures were not available.
The only current figures that Respondent could have had
at the time it discharged Stone and Payne were the figures for
February and March. Instead of a decrease, the total of those
figures showed about a 12 percent increase over the corre-
sponding period for 1969 and even more of an increase over
1968. Even considering the month of March 1970 alone (al-
though showing a decline from the month of February 1970)
the March figures showed an increase over the corresponding
month for both the years 1968 and 1969. Admittedly the
foregoing analysis is not conclusive as to the need or lack of
need to curtail the workforce, since the evidence does not
reveal how many employees Respondent had during the
months in question in 1968 and 1969.27 Even though Re-
spondent might argue that from February through March
1970, business had fallen off by some 9 percent (as indeed its
figures show) and that the trend was still down in the first part
of April (which the evidence does not show),28 the fact is that
by April 6 when Stone and Payne were terminated, Respond-
ent's workforce had already been reduced by some 11 per-
cent29-more than enough to balance its 9 percent loss of
business.
On the foregoing evidence I would reject Respondent's
claim that Stone and Payne were discharged because of a
reduced volume of business and find that this explanation was
advanced as a pretext to enable Respondent to eliminate two
union supporters in anticipation of an election. Moreover,
even if there had been no reduction in Respondent's work-
force to offset its 1-month 9 percent drop in business,70 I
16 These were the only figures produced by Respondent Although the
hearing was held in mid -June 1970 , no figures were offered for the month
of May
17 Since these figures were offered by Respondent in its defense it would
seem that any deficiency in them on their face would have an adverse
connotation for Respondent In any event since Respondent offered no
corresponding figures regarding the number of people it had employed in the
previous years, the implication is that such figures would not be favorable
for Respondent's position
" If there was a drop in the volume of work it was not reflected in
McClure's work during March and April His uncontroverted personal
records established that except for those Saturdays that were being worked
during that period he worked an average of 10 hours a day Moreover, for
each of the 3 days he worked in April up to the 6th he worked over l0%
hours a day
" In addition to its discharge of the three other alleged discriminatees
prior to April 6 another employee, Larry Flood, had left on March 14 by
resignation
10 It is difficult to believe that in its business , which admittedly has con-
siderable month-to-month variation in volume, Respondent would make
adjustments in the size of its workforce so quickly This would be particu-
larly true in Respondent 's organization where everybody is on a salaried
(Cont)
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would still have difficulty in accepting Respondent 's defense.
In the case of Stone, a discharge because there was no work
for him is completely at odds with Paschall 's explanation of
why he hired Stone. As will be recalled, according to Paschall
he had no need for Stone in the first place but put him to work
out of friendship for Stone 's father . In the case of Payne,
apart from the fact that he was a valued employee of some
duration , the disparity of his discharge because he had lost his
license with that of Ward who was kept for over a year when
he had lost his (at a time, of course , when there was no union
in the picture) is illuminating . These things , together with the
timing of the discharges at the height of the Union 's organiz-
ing effort , plus the manner in which they were effectuated,
convince me that the discharges were discriminatory within
the meaning of Section 8(a)(3) and I so find.
I also find that when Paschall told Payne that he heard the
employees were going to walk out his added comment that
he did not think Payne had anything to do with it was tan-
tamount to illegal interrogation and violated Section 8(a)(1)
of the Act.
3. The other reasons
Unlike the cases of Stone and Payne where the facts relied
on by Respondent in support of its action simply were not
true, with respect to the other three there is no question that
the facts cited by Respondent in support of its reasons for the
discharges were true and as such could be grounds for dis-
charge without violating the Act. However , it is well estab-
lished that no matter what justification an employer may have
to discharge an employeee , if the employee 's union activity or
support plays a part in the employer's motivation for the
discharge it is discriminatory within the meaning of Section
8(a)(3) of the Act. Kent Morgan Distributing Company, 172
NLRB No. 166; Whitfield Pickle Co., 374 F.2d 576, 582
(C.A. 5).
In considering the cases of the three remaining discharges
one must start with the premise that Respondent has demon-
strated its discriminatory motivation in the cases of Stone and
Payne and, more seriously , its willingness deliberately to fab-
ricate a pretext to discharge them . Considering such an atti-
tude together with Respondent 's other illegal manifestations
of union opposition and the record as a whole I am convinced
and find as will appear that the discharges of the other three
were motivated in substantial part by the Respondent's pur-
pose to eliminate as many union supporters as possible and
that the reasons advanced by Respondent were largely pre-
text to hide that purpose.
In the case of Overcast the disparity of his treatment with
that of Brayboy who, unlike the discharged Overcast, was
simply given "a good rigging" for a similar mistake plus the
timing of his discharge (on the day after Respondent had
refused the Union 's certified letter demanding recognition)
and the comment of D'Angelo that his background was
showing31 all convince me that the reason given Overcast for
his discharge was another pretext seized upon by Respondent
to enable it to eliminate another union supporter.
While no one would maintain that three accidents, in the
short period of time that Windsor had his, was a record that
would make any employer happy , it must be admitted that
basis and no extra remuneration is paid for overtime and no reduction in pay
occurs when work is slack Of interest in this respect is the following quota-
tion from Paschall 's speech
Have you ever been laid offs Did you ever miss a day from work because
we had nothing to do? We lost Louisville 6 months No one missed a
day of work
The only background the record reflects regarding Overcast was his
previous union connection and its accompanying strike action.
they were not of any significant consequence . So far as the
record shows, the combined estimate for the damage done
ranged from $ 110 to $145 . 32 While it might be argued that the
amount of damages is not important and only that the fre-
quency of accidents is important , indicating a driver that is
accident prone, it might also be argued that since Windsor
was a young and inexperienced driver his accidents were
simply the result of his inexperience and that such being the
case they might in the long run prove to be a very good and
inexpensive lesson for a new driver . In any event , whatever
Respondent 's attitude toward them would have been absent
Windsor 's union activity , " Paschall testified that he does not
become concerned about the accident of his drivers unless
they are brought to his attention by his insurer . At the time
Windsor was discharged , Paschall had received no such word
on Windsor so far as the record shows.J4 Notwithstanding
that Windsor would probably have been discharged when
Respondent received the insurance letter about his record, on
the whole record I am convinced and find that his premature
discharge was also pretextual in part and motivated by the
purpose to eliminate another union supporter.
From Driver 's October 1965 refusal to take an assignment,
it is is apparent that Respondent was put on notice that
Driver was an independent employee to say the least. Never-
theless, at that time Respondent apparently did not consider
his refusal serious enough to discharge him. Then when
Dever refused on March 8 to take the granite run Respond-
ent had another demonstration of Driver's independence.
Again Respondent apparently did not consider his refusal
serious enough to discharge him even though Driver 's reason
for refusing the assignment was not because of any claimed
conflict with his National Guard obligation35 but merely be-
cause he felt he was being discriminated against as per what
he felt was his contract of employment.
Two days later Driver again refused a granite run , this time
on the added grounds that it might interfere with his Nationl
Guard duties . This time he was discharged . In the meantime,
of course , a union meeting had been held at Driver 's home.
On these facts and the record as a whole I am convinced and
find that his discharge was motivated in large part by his
union activity as exemplified in the meeting at his home and
that his conduct was the pretext (not only seized upon but
expected by Respondent on the basis of past experience)
which would enable it to eliminate another union supporter.
In the light of the disparity of action demonstrated here it
makes little difference whether Driver could reasonably have
been expected to complete the run on time to meet his Na-
tional Guard obligation or not . In this connection it would
seem that Driver was on much more solid ground than in
" There was a $20 estimate for one and an estimate of from $90 to $125
for another with none shown for the third
" Paschall's failure to do more in the case of Windsor than "Kind of (get)
to him" at the time of his second accident , occurring as it did in the context
of Paschall's concern over his speeding , is in sharp contrast to the reason
for which overcast was claimed to have been discharged and in sharp con-
trast to the handling of Windsor's third accident. This contrast I am con-
vinced was due to the fact that at the time Windsor was merely "kinda of
got on" the Union had not yet made its appearance on Respondent's scene.
3' Respondent put into evidence a letter from its insurer which had the
following comment about Windsor
We also note that your driver, Donnie Windsor, has been involved in
three accidents recently in which he hit fixed objects . This seems an
unusually high accident frequency and we would strongly suggest that
some consideration be given to relieving him of his driving responsibli-
ties also
Unfortunately for Respondent's position this letter is dated April 9, 1970,
and, of course , could have played no part in the decision to discharge
Windsor prior to that time
" Which Respondent was committed to honor
PASCHALL TRUCK LINES 703
either of his two previous assignment refusals. It is one thing
to have an experienced driver push a heavily loaded truck
some 900 miles in 36 hours and another to expect a similar
performance from an inexperienced driver. And experience
aside, any equipment problems or road emergencies could
throw any schedule completely off. In the last analysis that
Driver's discharge involved something more than his refusal
to take the granite run in question would seem to be borne
out of Paschall's testimony when he was asked on cross-
examination" ... (Driver) refused to do a job three times and
you fired him, is that it?" And his answer was, "Yes, but it
wasn't account of that."
F. Refusal to Bargain
There is no dispute as to the appropriate unit which I find
to be all truckdrivers and dockhands of Respondent's Mur-
ray, Kentucky, city and road operations excluding all office
clerical employees, guards, professional employees, and
supervisors, as defined in the Act. There is a dispute, how-
ever, as to the inclusion in the unit of two service station
attendants, three mechanics, and a parts department em-
ployee-the General Counsel contending that they should be
excluded and Respondent of a contrary view.
The contested classifications perform services connected
with the equipment driven by Respondent's road and city
drivers. In addition, it appears that like Respondent's other
employees, including the drivers, they are paid on a salaried
basis and enjoy the same employee benefits as the unit em-
ployees. Moreover, on occasion (due to the small size of
Respondent's Murray operation among other things) any one
of them may be called upon to work on the dock or even to
drive a truck. Considering that the appropriate unit is not
made up exclusively of truckdrivers but includes dock work-
ers, and considering that the contested classifications make
up such a small proportion of the total employee comple-
ment, it would seem to be inimical to the interest of the
employer and the employees and the purposes of the Act to
exclude them from the unit, particularly in view of their
demonstrated community of interest with the unit employees.
Accordingly I recommend their inclusion in the unit.
By March 2, as noted, the Union had 24 authorization
cards36 out of a unit of some 37 employees. Although Re-
spondent's counsel made a valiant effort on cross-examina-
tion to show that the authorizations were not valid by reason
of misrepresentation, fraud, coercion, or otherwise on the
part of the card solicitors, he was unsuccessful in this at-
tempt. Thus it follows that as of March 3 the Union repre-
sented a majority of the employees in an appropriate unit.
On March 3, as noted, Respondent refused to accept in the
mail a certified letter from the Union requesting recognition.
As appears from the testimony of Linda Waugh, Respond-
ent's assistant office manager, this refusal was made with full
knowledge that and for the reason that the letter was from the
Union. In view of this (in spite of the fact that the Union
made no further attempt to communicate its demand for
recognition to Respondent other than to go out on strike on
April 27) Respondent is in no position to claim that no de-
mand for recognition was made by the Union. See City Elec-
tric Company, 164 NLRB 844 and cases cited therein.
The evidence shows that at no time did Respondent recog-
nize the Union. The evidence also shows that Respondent
raised no question as to the majority status of the Union and
indeed that Respondent had no doubts in that connection."
When asked by Respondent's counsel ". . . why didn't you
D6 Another one was secured on March 5
" Paschall admitted that a majority of employees joined the picket line.
figure you ought to recognize them ... " with "All these boys
on strike ...... Paschall answered:
I did not figure they really knew what they were doing.
They had a lot of promises and had some false promises.
I know by what the boys told me the kind of promises
they made . How much money they would make, all the
benefits they were going to have . I thought they were
misled."
I am convinced and find that Respondent refused to bar-
gain as alleged." I also find on the record as a whole consider-
ing the extent and pattern of Respondent's unlawful conduct
that a fair and coercion-free election cannot be attained and
that the authorization cards executed by a majority of the
employees in the appropriate unit represent a more reliable
measure of employee desire on the matter of representation
here and that the policies of the Act will be effectuated by the
imposition of a bargaining order . N. L.. .R.B. v. Gissel Packing
Co., 395 U. S. 575.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III, above,
occurring in connection with its operations described in sec-
tion 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 obstruction
commerce and the free flow thereof.
V THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1), (3), and (5) of the
Act, I shall recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the poli-
cies of the Act. I shall recommend that Respondent, upon
request, be ordered to bargain with the Union concerning
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. I shall also recom-
mend that Respondent offer Erwin P. Overcast, Richard
Stone, Moses Payne, Jr., and Jerald Driver immediate and
full reinstatement to their former or substantially equivalent
positions and that they be made whole for any loss of pay
from the dates of their discharges to the date of the offer of
reinstatement less their net earnings during that period. Loss
of pay shall be computed and paid in accordance with the
formula adopted by the Board in F W. Woolworth Co., 90
NLRB 289, and with interest thereon at the rate of 6 percent
per annum as prescribed by the Board in Isis Plumbing &
Heating Co.., 138 NLRB 716. With respect to Donnie M.
Windsor, whom I have found was discriminatorily dis-
charged on March 14 but who, because of his insurance
record, would have been discharged by April 11, 1970, I
recommend only that he be given backpay in the manner
described above from the date of his discharge through the
week ending April 11.
't On cross-examination he further testified that the reason the em-
ployees came to him on this occasion was because "they had a little griev-
ance" which he told them he "would take care of."
" Paschall's testimony regarding his agreement to settle a grievance
when a group of union defectors came to him amounts to individual bargain-
ing as alleged in the complaint and constitutes an additional indicia of
Respondent's refusal to bargain
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The unfair labor practices committed by Respondent in-
volved conduct in derrogation of the principles of good-faith
collective bargaining. The interference is thus warranted that
Respondent maintains an attitude of opposition to the pur-
pose of the Act with respect to the protection of employee
rights in general. Accordingly, I shall recommend that Re-
spondent be ordered to cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Paschall Truck Lines, Inc., at all times material herein
has been an employer within the meaning of Section 2(2) of
the Act.
2. Teamsters and Chauffeurs Local Union No. 236, affi-
liated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America at all times
material herein has been a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed by Section 7
of the Act, as found above, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
4. By discriminating against its employees, as found above,
Respondent has engaged in unfair labor practices within the
meaning of Section 8(a)(3) of the Act.
5. By failing and refusing to bargain in good faith with the
Union as the representative of all truckdrivers and dockhands
of Respondent's Murray, Kentucky, city and road opera-
tions, excluding all office clerical employees, guards, profes-
sional employees, and supervisors, as defined in the Act (an
appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act) Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclu-
sions of law and upon the entire record in this proceeding, I
recommend that Paschall Truck Lines, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership of its employees in Team-
sters and Chauffeurs Local Union No. 236, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor organi-
zation by discriminatorily discharging or in any other manner
discriminating against them in regard to their hire, tenure of
employment, or any term or condition of employment.
(b) Refusing to bargain collectively with Teamsters and
Chauffeurs Local Union No. •236, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representative of the
employees in the above unit.
(c) Illegally interrogating its employees about their union
activities, membership, or sympathies.
(d) Threatening its employees with discharge, loss of be-
nefits, or other reprisals because of their union activities.
(e) Creating the impression that it is keeping the union
activities of its employees under surveillance.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to bargain collectively through representatives
of their own choosing, or to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
2. Take the following affirmative action which I find will
effectuate the policies of the Act:
(a) Offer to Erwin P. Overcast, Richard Stone, Moses
Payne, Jr., and Jerald Driver immediate and full reinstate-
ment to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privi-
leges, and make them and Donnie M. Windsor whole in the
manner set forth in the section entitled "The Remedy."
(b) Upon request, bargain collectively with Teamsters and
Chauffeurs, Local Union No. 236, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive representative
of Respondent's employees in the appropriate unit described
herein and embody in a signed contract any understanding
reached.
(c) Preserve and upon request make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
Recommended Order.
(d) Post at its terminal in Murray, Kentucky, the attached
notice marked "Appendix B."40 Copies of said notice on
forms provided by the Regional Director for Region 9, shall,
after being duly signed by an authorized representative of
Respondent, be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for a period of 60
consecutive days thereafter, in conspicuous places, including
all places where notice to employees are customarily posted.
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the receipt of this Decision, what steps
it has taken to comply herewith."
IT IS FURTHER RECOMMENDED that unless on or before 20
days from the receipt of this Decision the Respondent notifies
said Regional Director, in writing, that it will comply with
the foregoing Recommended Order, the National Labor Re-
lations Board issue an order requiring it to take such action.
'0 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board."
" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 9, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX A
L. W. SPEECH TO EMPLOYEES 3-7-70 9:30 A.M.
(Suggestions For Mr. Paschal 's Talk To Employees)
I have asked that you all come together here so that I might
talk to you briefly about a matter of serious importance to
you.
In order that I may be entirely clear in what I say to you
today, and in order that there may be no doubt or misunder-
standing as to what I do say , I am going to refer to some notes
which I have here before me.
PASCHALL TRUCK LINES 705
As most of you know, the Teamsters Union is putting on
a campaign to try to get into this operation. A good many
questions are arising with regard to this matter, and I believe
you are all entitled to know definitely what our position is on
this subject.
I would summarize the matter for you as follows:
(1) The efforts of the Union to come in here are of
course, a matter of concern to the Company. We consider
it also-and just as truly-a matter of serious importance
to each and everyone of you-important to your future
here and the future of your families.
(2) It is our sincere belief that if this Union were to get
into this operation, it would not in the long run work out
to your own best interests.
(3) We are convinced that a direct relationship between
a company and its employees serves the best interests of
both-and that a union, in the long run, undermines that
relationship, and builds a barrier between the company
and its employees-and in the end usually brings friction
and dissension and serious trouble for all concerned.
(4) It is, therefore, our intention to oppose the Union
and by every lawful and proper means to prevent it from
coming into this operation.
(5) We would like to make it clear that it is not neces-
sary, and it is not ever going to be necessary, for anybody
to belong to the Teamsters Union, or any other union, in
order to work for this Company.
(6) Any employee who mightjoin or sign up with the
Union will never get any advantage nor any preferred
treatment of any sort over those who do not join or belong
to any union.
(7) As in all other matters not related to employees'
work, union organizing activities will not be allowed on
the job. Anybody who carries on such activities and
thereby neglects his own work, or interferes with the work
of others, will be subject to discharge from our employ-
ment.
Now anybody who tells you anything contrary to what I
have stated is not telling you the truth
This is the stand we take on this matter, and there will be
no changing in this position and this policy.
I could hold you here for a good while and go into detail
on all the reasons and explanations as to why we believe that
it is sound and wise for all of us to oppose a union coming
in here. If it should become necessary, we will in due time
explain all this to you fully and in detail.
For the present, however, there are just two or three other
points which I want to bring to your attention.
Union organizers often try to give people the impression
that if a union is able to get in, then automatically wages will
jump up higher and benefits of various kinds will be handed
around. Never was a more false impression created than that.
A union coming in does not automatically bring any wage
increases or any other benefits to anybody.
If this Union were to somehow get in here, what could it
force this Company to do? The answer is-nothing that the
Company might not consider to be reasonable or practicable.
The Union could try to pressure the Company by pulling you
out on strike. I hope you will understand, however, that we
have no intention of yielding to any sort of strike pressure
here.
In saying this, I do not mean to sound harsh or abrupt. I
simply think that it is fair and right-and likewise important
-that everybody shall understand this clearly-while there
is yet time and before anybody goes down the wrong road,
believing that a union can do things which it definitely cannot
do.
Now before long you may be approached by a union organ-
izer , or by someone acting in behalf of the Union, for the
purpose of getting you to sign a union card. Some of you have
already been so approached. If and when such a card is put
in front of you, think carefully! These cards may have conse-
quences which you do not understand.
One thing the union organizers always assure you is that
if you sign their card, then nobody except the Union and the
Labor Board will ever see the card which you have signed.
You should realize and understand that such may not be the
truth Sometimes, nowadays, unions try to have the Labor
Board certify them as bargaining agent for employees without
the employees ever having an opportunity to vote on the
matter at all-or regardless of how employees have voted.
If and when that happens, then the cards which have been
signed definitely do have to be brought out and laid on the
table and shown in an open public hearing In such a situa-
tion, as you can see, the Union's promise and assurance that
the signed cards would never be made public turns out to be
completely false.
Another favorite device that union organizers use is to tell
you that you are one of the few who hasn't yet signed and that
practically everybody, except you, has signed. That is a false-
hood which they tell each person in order to deceive him into
believing that the others are already on the side of the Union.
Sometimes one of your fellow employees will tell you that
if you do not sign a union card and join the Union, then you
will lose your job when the Union does come in. That is
nothing but a false threat-and an absolute false threat. If we
learn of any employee who spreads that false threat and
rumor, we will promptly discharge him. We will not keep in
our employment anybody who goes around telling other em-
ployees that they are going to lose theirjobs if they do not join
a union.
As I stated to you a few minutes ago, nobody has to join
any union to work here-and nobody will ever have to join
any union to work here. And I repeat, if we learn about it,
we will discharge any employee who tells you that you will
have to join a union in order to stay here.
Now, what your action about all of this will be is, of course,
a matter for each of you to decide. I have tried, however, to
state to you clearly and plainly some basic facts about this
matter. I hope you will keep those things in mind from now on!
WHAT ABOUT THE BENEFITS YOU NOW RECEIVE? DO YOU
KNOW THAT YOU NOW HAVE A PENSION PLAN AND LIFE IN-
SURANCE THAT IS PAID BY THE COMPANY9 THAT THE COM-
PANY IS PAYING PART OF YOUR PRUDENTIAL INSURANCE"
YOU ALSO HAVE YOUR SICK LEAVE AND ONE WEEK VACA-
TION AFTER 6 MONTHS, I DON'T KNOW OF ANY COMPANY
WHO HAS A PAID VACATION UNDER 1 YEAR HAVE YOU EVER
BEEN LAID OFF? DID YOU EVER MISS A DAY FROM WORK
BECAUSE WE HAD NOTHING TO DO" WE LOST LOUISVILLE 6
MONTHS NO ONE MISSED A DAY OF WORK
WE USED TO WORK ALL DAY SATURDAY, THEN WE CUT IT
DOWN TO NOON, THEN TO MID-MORNING NOW WE WANT TO
QUIT WORKING ON SATURDAY AT ALL SO THAT ALL OF US
MIGHT HAVE THE TIME WITH OUR FAMILIES TO DO THIS, WE
MUST PAY YOU ON FRIDAY INSTEAD OF SATURDAY TO DO
THIS AND GET ALL PAPERS STRAIGHT AND TO AVOID YOUR
UNHAPPINESS OVER ERRORS THAT ARE OCCURRING IN YOUR
PAY CHECK, WE NEED TO KEEP YOUR PAY ONE WEEK BEHIND
THIS IS ALSO NECESSARY AS EMPLOYEES HAVE WALKED OFF
WITH EXPENSE MONEY AND OWING THE SERVICE STATION
WE HAVE TO WRITE CHECKS BEFORE WE KNOW HOW MANY
DAYS YOU ACTUALLY WORKED BURT HAS SUGGESTED THAT
WE HOLD ONE DAY A WEEK FOR 5 WEEKS SO THAT YOU WILL
HAVE A PAY CHECK EVERY WEEK WE ARE WILLING TO DO
THIS TO PLEASE YOU (NOT APPEASE YOU) IF YOU PREFER
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THAT SOLUTION TO SKIPPING A PAY CHECK ONE WEEK
WHICH DO YOU PREFER?
AS YOU KNOW OUR COMPANY HAS GROWN AND THIS HAS
CREATED MANY PROBLEMS IN TRYING TO SOLVE ALL THESE
PROBLEMS , WE MAY HAVE NEGLECTED YOU DO YOU FEEL
THAT I HAVE FAILED YOU IN ANY WAY? I HAVE TRIED TO
KEEP MY DOOR OPEN AND HAVE TRIED TO TELL EACH EM-
PLOYEE WHEN HE WAS HIRED , IF HE HAD A PROBLEM THAT
I WOULD DISCUSS IT AND WOULD APPRECIATE ANY SUGGES-
TIONS9 THE COMPANY HAS GROWN SO THAT I CAN' T BE HERE
TO SUPERVISE ALL THE OPERATIONS NO MORE THAN I CAN
DELIVER ALL THE FREIGHT I MUST DEPEND ON YOU I WILL
TRY TO WORK WITH YOU MORE CLOSELY THAN IN THE PAST?
I WILL BE IN MY OFFICE ALL DAY TODAY (EVEN THROUGH
LUNCH) IF YOU WOULD LIKE TO DISCUSS ANYTHING WITH
ME WHAT IS REALLY WRONG?
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Teamsters
and Chauffeurs Local Union No. 236 , affiliated with
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , or any other
labor organization , by discriminatorily discharging em-
ployees or in any other manner discriminating against
them in regard to their hire or tenure of employment or
any term or condition of employment.
WE WILL NOT refuse to bargain collectively with the
aforesaid union as the exclusive bargaining representa-
tive of all truckdrivers and dockhands employed by us
in Murray, Kentucky, excluding all office clerical em-
ployees, guards, professional employees , and super-
visors, as defined in the National Labor Relations Act.
WE WILL NOT illegally interrogate our employees
concerning their union activities.
WE WILL NOT threaten our employees with discharge,
loss of benefits, or other reprisals for engaging in union
activities or joining the Union.
WE WILL NOT create or attempt to create the impres-
sion among our employees that we are engaging in sur-
veillance of their union activities.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of the
right to self-organization, to form , join, or assist the
aforesaid union or any other labor organization , to bar-
gain collectively through representatives of their own
choosing , and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid
or protection , or to refrain from any and all such activi-
ties.
WE WILL offer Erwin P . Overcast , Richard Stone,
Moses Payne, Jr., and Jerald Driver immediate and full
reinstatement to their former or substantially equivalent
positions without prejudice to their seniority and other
rights and privileges and make them and Donnie M.
Windsor whole for any loss of pay suffered as a result of
our discrimination against them.
WE WILL upon request meet and bargain collectively
with Teamsters and Chauffeurs Local Union No. 236,
Affiliated with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America, as
the exclusive bargaining representative of our employees
in the above-described appropriate bargaining unit, con-
cerning rates of pay , wages, hours of employment, and,
if an understanding is reached , embody such under-
standing in a signed agreement.
All our employees are free to become , remain , or refrain
from becoming or remaining members of the aforesaid union
or any other labor organization.
PASCHALL TRUCK
LINES, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
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.
Any questions concerning this notice or compliance with
its provisions , may be directed to the Board 's Office, Room
2407, Federal Office Building, 550 Main Street, Cincinnati,
Ohio 45202, Telephone 513-684-3686.