Ray Smith Transport Co.

National Labor Relations Board - Board Decisions

May 4, 1950

89 N.L.R.B. 1045 (N.L.R.B. 1950)

In the Matter of RAY SMITH TRANSPORT COMPANY and DALLAS
GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL UNION
No. 745
Case No. 16-CA-119.-Decided May 4,1950
DECISION
AND
ORDER
On November 29, 1949, Trial Examiner Peter F. Ward issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take.certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief, and a
motion to remand this 'proceeding for another hearing before a new
Trial Examiner.
The Board 1 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed.2 The rulings are here-
by affirmed. The Board has considered the Intermediate Report, the
Respondent's exceptions, brief, and motion to remand ,3 and the entire
record in the case,4 and hereby adopts the findings, conclusions, and
2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three'member panel [ Chairman Herzog and Mem-
bers Houston and Styles].
2 We have carefully considered the record in this case , and find no merit to the Respond-
ent's allegations that the Trial Examiner was biased and prejudiced . We likewise find no
merit to the Respondent 's contention that the, complaint in this case was not based on a
proper charge . The charge was in the prescribed form and was executed in the manner
prescribed by Sec . 203.11 and 203.12 of the Board's Rules and Regulations . See Houston
and North Texas Motor Freight, 88 NLRB 1462. As to the Respondent ' s contention that
the record fails to show compliance by the Union, the Board has consistently held that
compliance with Section 9 (f), (g), and (h) of the Act is not a litigable issue. Shawnee
Milling Company, 82 NLRB 1266.
e For the reasons set forth hereinafter, the Respondent 's motion to remand is hereby
denied.
4 As the record and the Respondent 's exceptions , brief, and motion to remand fully present
the issues involved and the positions of the parties , the Respondent 's request for oral
argument is hereby denied.
89 NLRB No. 134.
1045
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommendations of the Trial Examiner, except insofar as they are
inconsistent with this Decision and Order.
1. We agree with the Trial Examiner that jurisdiction should be
asserted in this case. In so concluding, we do not adopt the Trial
Examiner's finding that in excess of 10 percent of the petroleum
products annually transported by the Respondent, or, approximately
16,000,000 gallons, either originated outside the State of Texas,5 or was
transported by the Respondent to points from which it was transported
outside the State of Texas. However, the record demonstrates and we
find, that the amount of petroleum products transported by the Re-
spondent, which originated out of the State or was destined for out-of-
State shipment, was in excess of 6,900,000 gallons, and that the
Respondent received in excess of $56,000 for transporting such prod-
ucts. On the basis of the foregoing, and also on the basis of the
Respondent's services for companies admittedly engaged in commerce,
we find that the Respondent's activities affect commerce, within the
meaning of the Act, and that it would effectuate the policies of the Act
to assert jurisdiction in this case.
2. Like the Trial Examiner, we find that the Respondent violated
Section 8 (a) (1) in the interrogation and statements by management
officials Smith, Copeland, and Atwell, as fully set forth in the Inter-
mediate Report. However, unlike the Trial Examiner, we do not
base our finding upon the totality of the Respondent's conduct. We
also find that the Respondent violated Section 8 (a) (1) of the Act
when President Smith told Bain, on November 23, 1948, that "It
looked like for twenty-years or so people would learn that they can't
organize my company, my business. . . . I can sell out and live
good the rest of my life."
3. We agree with the Trial Examiner that the Respondent dis-
charged Veasey, Bain, Needham, Straight, Worley, and Alexander in
violation of Section 8 (a) (1) and (3) of the Act. On November 18,
1948, Bain named to Hillin these six employees, and only these six em-
ployees, as members of or applicants for membership in the Union. On
the following day, Hillin went on a deer hunt, where he spent a period
of time with Vice-President Atwell. Within the next 3 days, at the
first opportunity after Hillin left for the deer hunt, these six, and only
these six, were discharged.
5 The Trial Examiner inadvertently stated , in his Intermediate Report , that 65 percent
of the crude oil refined and processed by the Texas Company's Port Arthur works and
terminal was obtained from points within the State of Texas , whereas the record reflects
that the foregoing percentage was obtained from points without the State of Texas. He
likewise inadvertently omitted Texas City, Texas, as one of the points to which the
Respondent hauled petroleum products for warren Petroleum Corporation . The Inter-
mediate Report is hereby corrected in the foregoing respects . The foregoing errors do not
affect the Trial Examiner 's ultimate conclusions , nor our concurrence therein.
RAY SMITH TR'ANTSPORT COMPANY 1047
The Respondent asserts that these employees were discharged for
cause in connection with a reduction in force, Bain and Veasey having
been selected for discharge by Atwell, and the other four by Operating
Manager Copeland. We find, however, that it is beyond the realm
of reasonableness to conclude that Atwell and Copeland would have
independently selected for discharge the same individuals, and only
such individuals, as were identified to Hillin as being engaged in union
activities. It is, rather, a reasonable inference from the evidence in
this case, and we find, that Hillin communicated to Atwell the in-
formation which he received from Bain,° and that Atwell and Smith,
on the basis of such information, instructed Copeland to discharge
these employees.7
Like the Trial Examiner, we find no merit in the Respondent's con-
tention that these employees were discharged for cause. Viewing
the evidence in the light most favorable to the Respondent, the Re-
spondent may have had what it considered good cause to discharge
these employees. It does not necessarily follow, however, from the
fact that the Respondent may have had such cause, that the discharges
were for such cause." On this record, we are persuaded that they were
not for cause, but were motivated by the union activities engaged in
by these employees. In so finding, we rely particularly on (1) the
6It is true , as the Respondent asserts, that there is no evidence to establish that Hillis
Is a supervisor ; nor is there testimony that Hillin communicated such information to
any of the Respondent ' s supervisory personnel . In addition , Smith, Atwell , and Copeland
all denied that any such information , or instructions to discharge these employees, was
communicated to Copeland between the time of Hillin 's return to Dallas on November 19,
1948, and the time these employees were discharged . On this record , however, such direct-
evidence is not essential.
' The transcript of the hearing erroneously reflected that Copeland answered "I did"
to the question "Mr. Copeland , I will ask you if , when you saw Mr . Veasey on the morning
of November 20th, you told him this , 'well, I have had a call from Kerrville that your woriz
is unsatisfactory ?' " ( See footnote 58 of the Intermediate Report .). After the Inter,
mediate Report was issued , the Respondent , the Union , and the General Counsel stipulated
that Copeland 's actual answer to the foregoing question was "I did not ." The record
is hereby corrected pursuant to the foregoing stipulation.
The Respondent's motion to remand this proceeding, which we have denied (see footnote
3, supra ), was predicated upon alleged prejudice resulting from the Trial Examiner's
reliance upon the apparent conflict in Copeland ' s testimony . In finding that Atwell and
Smith instructed Copeland to discharge these employees , and in upholding the Trial
Examiner ' s credibility findings, we do not, however , rely on this apparent conflict in
Copeland 's testimony . Both Atwell and Copeland admitted a regular practice of telephonic
communication whenever Atwell was away from the office , and neither contends that such
practice was discontinued during the period relevant to this issue. Tloreover , all six of
these employees , whom the Trial Examiner credited , testified that at the time they were
discharged Copeland told them that they were being discharged on instructions from
Copeland ' s superiors . As the Trial Examiner based his credibility findings not only on
the apparent inconsistency in Copeland ' s testimony , but also on his observation of the
witnesses and the entire record in the case , and as his credibility findings are not clearly
erroneous or unreasonable , we shall not disturb them.
IN. L. R. B. v. Electric City Dyeing Co., 178 F. 2d 980, 983 (C. A. 3) ; Edward G. Budd
Mfg. Co. v . N. L. R. B., 138 F . 2c1 86, 90 ( C. A. 3), cert. den . 321 U. S. 778 ; Fairmont
Creamery Company, 73 NLRB 1380 , enfd . 169 F. 2d 169 ( C. A. 10).
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct of the Respondent which we have found violated Section 8
(a) (1) of the Act; (2) the summary nature of the discharges; (3) the
timing of the discharges immediately following the Respondent's
acquisition of knowledge of union activity on the part of all six of
these employees;9 (4) the fact that no employees other than these six
were discharged at this time; 10 (5) the fact that, with the exception
of Needham, none of these employees were advised, at the time of their
discharge, of the alleged specific reasons for the discharge, or that
they were being discharged for the reasons assigned by the Respondent
at the hearing; and (6 ) the admissions by Atwell to Veasey, by Cope-
land to Alexander and Worley, and by Maintenance Foreman Milli-
can 11 to Bain, at the time of the discharges, that they were being
discharged for union activity.
4. We also agree with the Trial Examiner that Pickard was dis-
charged in violation of Section 8 (a) (1) and (3) of the Act. When
Pickard reported for work, on the day of his discharge, Copeland
asked him to watch the telephone while he (Copeland) went for coffee.
It was only after Copeland later returned the long-distance telephone
call, which came in while he was gone, that he discharged Pickard. It
is true that the record contains no evidence as to how the Respondent
acquired knowledge of Pickard's union activity. Copeland's state-
ments to Pickard, at the time of his discharge, confirmed, however,
that the Respondent did acquire such knowledge.12 On the basis of
the foregoing, and because of (1) the summary nature of the dis-
charge, (2) the timing of the discharge immediately following the
receipt by Copeland of a long-distance telephone call from Kerrville,
(3) Copeland's failure, at the time of the discharge, to advise Pickard
of the alleged specific reason for the discharge, or that he was being
discharged for the reasons assigned by the Respondent at the hearing,
and (4) Copeland's admissions to Pickard at the time of the discharge,
we find that Copeland was instructed by his superiors to discharge
Pickard, and that he did discharge Pickard, because of Pickard's
o We find without merit the Respondent ' s exception to the Trial Examiner ' s finding that
these six employees and Pickard were all the union adherents employed by the Respondent.
There is no evidence in the record that the Respondent had knowledge of any other union
adherents during the period relevant to this proceeding.
10 We do not consider the fact that other employees may have been discharged singly
at other times to be relevant to a mass discharge such as is here in question . Moreover,
the Respondent does not contend that any dischargees other than these six were included
on the list used by Copeland and allegedly prepared after his alleged conference with
Atwell on November 19, 1948.
n On the basis of his admitted authority to hire and discharge maintenance employees,
we find that Millican is a supervisor as defined in the Act.
12 As found by the Trial Examiner, Copeland admitted to Pickard that he was being dis-
charged on orders from Kerrville, that the discharge "might be" because of the Union, and
that he would not have been discharged if he had kept his "nose out of the Union business."
RAY SMITH TRANSPORT COMPANY 1049
participation in union activities. Accordingly, we reject the Respond-
ent's contention that Copeland discharged Pickard for cause.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Ray Smith Trans-
port Company, Dallas, Texas, its agents, successors, and assigns , shall :
1. Cease and desist from:
(a) Discouraging membership in Dallas General Drivers; Ware-
housemen and Helpers, Local Union No. 745, or any other labor
organization of its employees, by discharging, laying off, or refusing
to reinstate any of its employees or by discriminating in any other
manner in regard to their hire or tenure of employment, or any term
or condition of their employment :
(b) Interrogating its employees concerning their union affiliation,
activities, or sympathies, or threatening its employees with reprisal or
economic loss because of their union affiliation, activities, or sympa-
thies;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Dallas General Drivers, Ware-
housemen and Helpers, Local Union No. 745, or any other labor organi-
zation, to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any or
all of such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate-the policies of the Act:
(a) Offer to J. R. Veasey, John W. Bain, C. J. Needham, Jr., J. B.
Worley, E. O. Alexander,13 Herbert Straight, and Carl Pickard im-
mediate and full reinstatement to their former or substantially equiv-
alent positions, without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay they may have
suffered by reason of the Respondent's discrimination against them,
by payment to each of then of a sum of money equal to the amount
which he would normally have earned as wages from the date of the
11 Sometimes erroneously referred to in the Intermediate Report as E. O. Anderson.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discrimination against him to the date of the Respondent's offer of
reinstatement, less his net earnings during the said period;
(b) Post at its place of business in Dallas, Texas, copies of the
notice attached hereto and marked Appendix A 14 Copies of said no-
tice, to be furnished by the Regional Director for the Sixteenth Region,.
shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof, and main-
tained for a period of sixty (60) consecutive days thereafter in con-
spicuous places, including all places Where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered by any
other material;
(c) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) clays from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in DALLAS GENERAL.
DRIVERS, WAREFIOIJSEMEN AND HELPERS, LOCAL UNION No. 745, or
any other labor organization of our employees, by discharging,
laying off, or refusing to reinstate any of our employees, or by
discriminating in any other manner in regard to their hire or
tenure of employment, or any term or condition of employment.
WE WILL NOT interrogate our employees concerning their union
affiliation, activities, or sympathies, or threaten them with re-
prisal or economic loss because of their union affiliation, activities,.
or sympathies.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organ--
ization, to join or assist DALLAS GENERAL DRIVERS, WAREHOUSE-
MEN AND HELPERS, LOCAL UNION No. 745, or any other labor,
organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities. for the pur-
pose of collective bargaining or other mutual aid or protection,
14 In the event this Order is enforced by decree of a United States Court of Appeals, there,
shall be inserted before the words "A DECISION AND ORDER" the words "A DECREE OF
THE UNITED STATES COURT OF APPEALS ENFORCING."
RAY SMITH TRANSPORT COMPANY 1051
or to refrain from any or all of such activities , except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
WE WILL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions , without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination :
J. R. Veasey John W. Bain
C: J. Needham , Jr. J. B . Worley
E. 0. Alexander Herbert Straight
Carl Pickard
All our employees are free to become, remain, or refrain from be-
coming members of the above-named union or any other labor organ-
ization, except to the extent that this right may be affected by an agree-
ment in conformity with Section 8 (a) (3) of the amended Act. We
will not discriminate in regard to the hire or tenure of employment or
any term or condition of employment against any employees because
of membership in or activity on behalf of any such labor organization.
RAY SMITII TRANSPORT COMPANY,
Employer.
Dated ------------- By -------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Messrs. Joseph A. Jenkins and Jaynes R. Webster , for the General Counsel.
White , Forsythe and Atwood , by Mr. W. D. White, and Malone , Lipscomb and
Seaga, by Mr. George Seay, of Dallas , Tex., for the Respondent.
Mullinax , Wells and Ball, by Messrs. L. N. D. Wells , Jr., and Nile Ball, of Dal-
las, Tex., for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed November 11, 1948, by Dallas General Drivers, Ware-
housemen and Helpers, Local Union No. 745, herein called the Union, the General
Counsel for the National Labor Relations Board 1 by the Regional Director for the
Sixteenth Region (Fort Worth, Texas), issued a complaint dated April 20, 1949,
against Ray Smith Transport Company, herein called the Respondent, alleging
that it had engaged in and was engaging in unfair labor practices affecting com-
I The General Counsel and his representatives at the hearing are referred to as the Gen-
.eral Counsel , and the National Labor Relations Board is referred to as the Board..
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and
(7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called
the Act. Copies of the complaint accompanied by notice of hearing thereon were
duly served upon the Respondent and the Union.'
With respect to the unfair labor practices, the complaint alleged in substance,
that: (1) on or about November 19, 1948, the Respondent discharged J. R. Veasey,
John W. Bain, C. J. Needham, Jr., J. B. Worley, E. 0. Alexander, and Herbert
Straight, and on or about November 26, 1.948, discharged Carl Pickard, and at all
times thereafter refused to reinstate the said discharged employees for the rea-
son thit they joined or assisted the Union or engaged in other concerted activities
for the purposes of collective bargaining or other mutual aid or protection; (2)
the Respondent, through its officers, agents, and employees, namely, Ray Smith,
president of the Respondent Company ; Bob Atwell, vice president and sales
manager ; Johnny Copeland, dispatcher and foreman ; from on or about November
10, 1948, and at all times thereafter engaged in acts of interference, restraint, and
coersion;3 and (3) by the acts described above the Respondent has interfered
with, restrained, and coerced its employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
On May 2, 1949, the. Respondent filed a motion wherein it alleged that the
employees listed in the complaint were discharged for cause; reiterated its
motion to dismiss for want of jurisdiction ; ° its motion for a more definite.
statement;' and its answer to the complaint.
The Respondent's answer denied that it had engaged in the unfair labor prac-
tices alleged and affirmatively alleged that the employees listed in the complaint
were discharged for cause; reiterated the alleged lack of jurisdiction by the
Board ; alleged that the Respondent was and is licensed by the Railway Commis-
sion of the State of Texas under an Intrastate Motor Carrier Permit, No. 7391,.
which limits the Respondent's operators to an area of 350-mile radius of Dallas,.
and wholly within the State of Texas.
Pursuant to notice, a hearing was held at Dallas, Texas, between May 10 and
18, 1949, before the undersigned Trial Examiner, duly designated by the Chief
Trial Examiner. The General Counsel, the Respondent, and the Union were
represented by counsel. All participated in the hearing and were afforded full
opportunity to be heard, to examine, and cross-examine witnesses, and to intro-
duce evidence bearing upon the issues.
At the conclusion of the testimony, counsel for Respondent made 12 motions
with a request for separate rulings on each. The undersigned denied 4 of such
motions and reserved ruling on the other 8 motions, and now rules that all of
2 The record discloses that a copy of the charge was served upon the Respondent under.-
date of November 30, 1948.
3 Stated generally , these acts are alleged to consist of statements , as follows : ( a) state-
ment by Ray Smith to a dischargee Bain that he would fire any man who would "talk-
union" and try to get one in his company and before he would see his business organized
he would run his trucks into the Trinity River ; (b) statement by Bob Atwell to dis-
chargee Veasey that the only way Veasey could be rehired would be upon condition that he-
drop all union activity and report any union activity to Atwell ; ( c) statement by Johnny
Copeland, terminal manager at the time Copeland hired dischargee Straight on or about
July 15, 1948, as to whether Straight belonged to the Union; and (d) by statements of
Ray Smith to discharge Bain, made at various times after November 1948, that the dis-
chargees would be employed only on the condition that they drop their union activity.
The motion to dismiss for alleged want of jurisdiction is considered and discussed in
detail in. Section I below.
5 The motion for a more definite statement was, during the hearing , granted in part and
denied in part.
RAY SMITH TRANSPORT COMPANY. ' . 1053
such motions be denied, except the motion referred to in the record as Number
which is hereby granted.
Also at the close of the testimony counsel for the Union moved that the under-
signed reconsider a ruling made during the hearing striking certain testimony of
Vernon L. Bonds. The undersigned reserved ruling thereon, and now, for the
reasons stated in Section III, below, in connection with the consideration of
Bonds' testimony, rules that the motion be granted and that the undersigned's
prior ruling striking such testimony be, and it is hereby, vacated. At the close
of the hearing the General Counsel moved without objection to conform the
pleadings with the proof .in minor matters. The motion was granted by the
undersigned. Also at the close of the hearing the parties were afforded an
opportunity to argue orally before the undersigned. All counsel participated in
such argument which was included in the transcript of proceedings herein. The
parties were advised that they might file briefs and/or proposed findings of fact
and conclusions of law with the undersigned. Briefs were filed by the General
Counsel and by counsel for the Union.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT 7
The Respondent has operated as a corporation since February 1, 1947, when
it was incorporated under the laws of Texas. It has its principal office and
place of business located at Dallas, Texas. It operates as a service organization
only in the transportation of petroleum products for sundry and divers oil
companies operating in the State of Texas, where Respondent operates some
60 to 80 tank trucks wholly within the State of Texas, under an Intrastate'
Specialized Motor Carrier Permit, No. 7391, issued by the Railroad Commission
of the State of Texas. Such permit limits Respondent's operations to an area
within a 350-mile radius of the city of Dallas, and wholly within the State of
Texas.
During the calendar year 1948 the Respondent hauled approximately 150,000,-
000 gallons of petroleum products within the 350-mile radius of Dallas, Texas,
and wholly within the State of Texas, for eight companies for which services it
received approximately $1,420,866. The freight receipts and gallons hauled were
as follows :
Company Freight
receipts
Gallons
hauled
Texas Company ------------------------------------------------------ $691,677.99 76, 008, 430
Warner Petroleum Company------------------------------------------ 173,982.74 18,552,661
Continental Oil Company--------------------------------------------- 105, 655.77 8,886,343
h umble Oil & Refining Company------------------------------------- 82, 714.80 8,619,601
Premier Oil & Refining Company--------_--------------------------- 52,310.59 7, 042,114
Magnolia Petroleum Company---------------------------------------- 160,312.39 16,031,239
Gulf Oil Company- ----------------------------------------- 36, 931.00 3,244,968
Sinclair Refining Company------------------------------------------- 67,631.36 10, 649,186
° The motion was to strike the testimony of-the witness Boone to the effect that the Texas
Oil Transport Company was a subsidiary of the Ray Smith Transport Company. Boone's
testimony in such connection stated a conclusion only, which was based on no factual
evidence in the record.
7 The findings in this section are based upon a series of stipulations entered into by the
parties . While the Respondent agreed to such stipulations , it contends such facts so
stipulated fail to establish that the Respondent is engaged in interstate commerce,
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Of the petroleum products hauled by the Respondent for the Texas Company
and the Continental Oil Company during 1948, were deliveries to Perrin Air
Field, Sherman, Texas, Carswell Air Force Base, Fort Worth, Texas, of 18,000
gallons each ; delivery of 9,000 gallons to Mid-Continent Air Lines, Tyler,
Texas; and to Southwest Airmotor Company, Love Field, Dallas, Texas, approxi-
mately 500,000 gallons.'
The Texas Company operates a bulk station at Texarkana, Texas, from which
sales are made in both the States of Texas and Arkansas. During 1948 a total
of 2,856,340 gallons of petroleum products was sold by the Texas Company
through the Texarkana Bulk Station, of which quantity, a total of 747,570 gallons
was sold in Arkansas. The Respondent makes full truck transport deliveries
direct to storage of United Transports, Inc., for the account of the Texas Com-
pany into two bulk tanks located in Texas ; gasoline drawn from one tank is
used exclusively in rolling equipment traveling Texas highways, and gasoline
from the other tank is used exclusively in rolling equipment traveling Arkansas
highways. During 1948, gasoline totals placed in these two tanks by Respondent
were as follows :
Gallons
For use in Texas--------------------------------------- 418,252
For use in Arkansas----------------------------------- 432,195
During 1948 the Respondent hauled a total of 2,701,997 e gallons of petroleum
products for the Texas Company from the latter's Port Arthur, Texas, works,
to 24 bulk stations all located in Texas. Approximately 65 percent of the crude
oil refined and processed by the Texas Company's Port Arthur works and
terminal is obtained from points within the State of Texas.
Out of the total volume of petroleum products hauled for the Premier Oil and
Refining Company by Respondent during 1948, 3,985,722 gallons of gasoline were
transported from Arp and Longview, Texas, to Carthage, Texas, for trans-
portation by pipe line to Helena, Arkansas.
As found above the Respondent hauled 18,552,661 gallons of petroleum prod-
ticts for Warren Petroleum Corporation in 1948. The parties stipulated that
such products originated at Conroe, Fortune, Vanderbilt, Rio Grand City,
Breckenridge, Eliasville, and Desdemona, Texas ; that such products consisted
of casinghead gasoline which had been compressed into natural gasoline; that
such gasoline was delivered at Warren Petroleum Company's terminals located
at Houston and Corpus Christi, Texas, and to the refinery of the Gulf Oil Com-
pany in Fort Worth, Texas ; that the Houston and Corpus Christi terminals are
large ones and the product transported by Respondent to such terminals during
1948 constitutes small part of the total handled by such terminals; that the
products so transported by Respondent is there intermingled with other natural
gasoline and loses its identity ; and that the Warren Petroleum Corporation
then sells and ships the greater portion of the products handled at Houston and
8 The parties stipulated that Southwest Automotive Company sold during 1948, approxi-
mately 1 , 000,000 gallons of aviation gasoline to owners of private aeroplanes ; that during
1948 it made approximately 10,000 individual sales of such gasoline ; that a spot check of
100 sales slips for a 10 -day period shows that about one -third of the purchasers gave
addresses outside the State of Texas ; and that Southwest Airmotive Company did not know
from what points such planes flew to Love Field, Texas, nor to what point such planes were
flown from Love Field , Texas.
B This amount represents 3.55 percent of the total products transported for the Texas
Company during 1948 by Respondent.
RAY SMITH TRANSPORT COMPANY 1055
Corpus Christi terminals out of Texas. From the foregoing it is clear that a
very substantial portion of 18,552,661 gallons of petroleum products transported
by Respondent for the Warren Petroleum Corporation during 1948 was trans-
ported without the State of Texas. Respondent transports petroleum products
for the Magnolia Petroleum Company from the Fort Worth refinery and the
McMurray refinery located at Tyler, Texas, to some 50 to 60 bulk stations located
throughout Texas.
An analysis of the facts stipulated by the parties disclose that approximately
16,000,000 gallons of petroleum transported by Respondent for the different
oil companies named above either originates outside the State of Texas and was
subsequently and immediately transported by Respondent to its point of destina-
tion within the State or was transported by Respondent to points from within
the State to points ,pm which.it was transported without the State of Texas.
From the foregoing and the record it appears and the undersigned finds that in
excess of 10 percent of 150,000,000 gallons of petroleum products which the Re-
spondent admittedly transported for the companies named above, moved di-
rectly in interstate commerce.
The parties stipulated that the eight oil companies named above
... are engaged in business which affect interstate commerce, and that
the operation of these Companies at the present time, for the purposes of
this suit are substantially the same as they have been for the last five years,"
Issues; contentions; conclusion
The Respondent contends, in substance and-effect, that inasmuch as it : (1)
operates under a Specialized Motor Carrier Permit issued by the State Railroad
Commission, limiting its operations to a 350-mile radius of Dallas, and wholly
within the State of Texas; (2) makes no sales, either interstate or intrastate,
and the intrastate transport of petroleum products performed by it are essen-
tially local operations; and (3) its operations do not have a "substantial eco-
nomic effect" on interstate commerce or affect commerce within the meaning
of the Act, the Board is without jurisdiction to hear and determine the issues
herein.
"That each of these oil companies are not only in business which "affects interstate
commerce," but are each engaged in interstate commerce as such, is disclosed, in the main,
by numerous decisions of both the Board and courts of the United States, of which the
undersigned takes judicial notice. For example,
As to-Texas Company-See 112 F. 2d 744 (C. A. 5) [v. N. L. R. B.] enforcing
17'NLRB 843 "(certiorari denied 311 U. S. 712) .1940 ; 119 F. 2d 23 (C. A. 7) [v. N. L.
R. B.1, 26 NLRB 1059; 1941 ; and see NLRB Decisions as follows : 33-722; 43-250;
53-507; 63-134; and 73-1490. [First two numbers indicate the volume number ; and
numbers following indicate page numbers in all references to NLRB Decisions had
in this footnote.]
As to-Humble Oil and Refining Company-See 113 F. 2d 85 (C. A. 5), enforcing
as modified 16 NLRB 112, 1940; 140 F. 2d 777 (C. A. 5), enforcing 48 NLRB 118,
1944; and see NLRB Decisions as follows : 44-518; 53-116; 54-78; 16-112; and
48-1118.
As to-Magnolia Petroleum Company-See 115 F. 2d 545 (C. A. 5) [v. N. L. R.-B.1,
enforcing 18 NLRB 380, 1040; and see NLRB Decisions, as follows : 52-984; 57-1714,
and 62-115.
As to-Gulf Oil Corporation-See NLRB Decisions, as follows : 4-133 ; 19-334;
21-97 ; 52-880 ; 65-865 ; 72-895 ; 47-327 ; and 77-308.
As to-Sinclair Refining Company-See NLRB Decisions, as follows : 35-1145;
36-1109 ; 64-611 ; 69-970 ; 72-1218 ; and 73-724.
1056 DECISIONS OF'NATIONAL LABOR RELATIONS BOARD
• As to contention (1), while it is clear that the Respondent's tank truck
operations are confined to the transport of petroleum products wholly within the
State, the record discloses that in excess of 15,000,000 gallons of such products,
so transported by Respondent, moved directly in interstate commerce ; and that
by the deliveries of approximately 135,000,000 gallons transported for the eight
major oil companies named hereinabove, in addition to the 15,000,000 gallons of
such products which moved in interstate commerce as above set forth, the
Respondent's tank truck drivers became and were an integral part of the eight
major oil companies' distribution systems;' whose activities, notwithstanding
they were intrastate ones, affected interstate commerce. Wihle the State Rail-
road Commission, by the issuance of the Motor Carrier Permit, confined Re-
spondent's activities to the State of Texas, it did not prevent Respondent from
engaging in the activities found above which did in fact affect interstate com-
snerce" Contention (1) is without merit.
As to contention (2), while Respondent concedes that it neither buys nor sells
the petroleum products it transports and that it has nothing to sell except its
services as a common carrier, it contends that its operations are essentially local
operations over which the Board should refuse to assert jurisdiction. It has
long been the practice of the Board to assert and exercise jurisdiction over com-
panies operating entirely within a State because such companies rendered
services to companies engaged in interstate commerce." It may not be said that
the delivery of 150,000,000 gallons of petroleum products for eight major oil
companies, who are concededly engaged in interstate commerce, where, in excess
of 10 percent of such products move directly in interstate commerce over a 350-
mile radius of Dallas;' Texas, is essentially a local operation. The contrary is
true and is so found. Contention (2) is without merit.
As to contention (3), wherein Respondent contends its operations do not have
a "substantial economic effect" on commerce to warrant the Board exercise of
jurisdiction, since there are other available facilities for use by Respondent's
customers in the event a labor dispute deprived such customers of the services of
Respondent's tank truck fleet. Similar contentions were before the United States
Supreme Court and were.rejected in N. L. R. B. v. Bradford Dyeing Association,l'
the Court, in part, stated :
. . . That this evidence was abundantly sufficient to justify exercise of
jurisdiction by the Board is not now open to controversy. It is settled
that the Act is applicable to a processor, who constitutes even a relatively
small percentage of his industry's capacity,' where the materials processed
.are moved to and from the processor by their owners through the channels
of interstate commerce,' and it is not material, as the court below thought,
that respondent's customers might be able to secure the same services from
4 The record indicates that Respondent does roughly one percent of the national
total of business in its industry.
5 N. L. R. B. v. Fainblatt, 306 U. S. 601.
11 See Fn . re Phillips Petroleum Co., 57 NLRB 1403.
12 See State Fe Springs Waste Water Disposal Company et at., 65 NLRB 403.
13 Some of the more recent decisions are as follows : El Paso -Ysleta Bus Company, 79
NLRB 1068 [22 LRRM 1496] ; Illinois Electric & Gas Co., 82 NLRB 1420 [24 LRRM 1026] ;
DeMay's Inc., 81 NLRB 1374 [23 LRRM 1505] ; Enice Iron Works, Inc., 80 NLRB 259
[23 LRRM 1088].
14 Since Dallas is less than 350 miles from the Texas border at some points , it is not
convenient to determine the square miles covered by the Motor Carrier Permit.
1x 310 U. S. 318, . 324, .60 S. Ct. 918, 922.
ItAY SMITH TRANSPORT COMPANY 1057
other Rhode Island processors if a labor dispute should stop the interstate
flow of materials to and from respondent's plant.
Contention (3) is without merit."
Conclusions
From the foregoing. and the record the undersigned concludes and finds that
Ray Smith Transport Company is engaged in activities affecting commerce and is
also engaged in commerce within the meaning of the Act ; and that it would
effectuate the policies of the Act for the Board to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Dallas General Drivers, Warehousemen and Helpers, Local Union No. 745, is
a labor organization within the meaning-of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The discriminatory 'discharges; interference, restraint, and coercion
1. Events antedating the discriminations
Insofar as it appears from the record there was no union activity among Re=
spondent's employees prior to on or about the 1st of November, 1948. During
November 1948,' Vernon L. Bonds, then employed as a truck driver for the Re-
spondent, had a conversation with Robert L. Atwell, vice president of the
Respondent, in which connection Bonds testified :
Q. What was this conversation?
A. We were talking about different companies, the way they operated,
and I made the remark that some companies looked like they would have
to have a Union before they could treat their men fair.
Q. What did Mr. Atwell say?
A. Well, he said he didn't have any use for a Union. There was someone
else present at the time I made the remark.18
Thereafter and on or about November 7, Johnny Copeland, operating manager,
called Bonds ihto the shop and showed him a ticket that he had received from
19 Respondent , on the theory that its intrastate delivery of products for the major oil
companies did not constitute interstate commerce, contended in substance and effect, that
such products hauled by it as were shown to have moved directly in interstate commerce
were of such relatively small amount as to require the application of the de minimis
doctrine. The undersigned has found above that in excess of 10 percent of the 150,000,000
gallons was transported by Respondent directly in interstate commerce. It is the opinion of
the undersigned that the amount referred to next above is not de minimis; and that the
volume of such commerce was relatively small is not important. See N. L. It. B. v. Cowell
Portland Cement Co., 148 F. 2d 237 (C. A. 9) ; N. L. R. B. v. Fainblatt, 306 U. S. 601, re-
versing 98 F. 2d 615 (C. A. 3) ; and N. L. R. B. v. Sunshine Mining Co., 110 F. 2d
780, 784. -
17 Unless otherwise indicated all events referred to herein occurred in 1948.
"During the bearing the undersigned, on motion of Respondent's counsel, struck this
testimony from the record. The motion of the General Counsel and counsel for the Union
that the undersigned reverse and vacate his ruling striking such testimony was denied
with the proviso that it might be renewed at or before the close of the hearing. Said
motion was renewed at the close of the hearing and the undersigned reserved ruling thereon
for his Intermediate Report. As set forth hereinabove the undersigned granted the motion
to reverse and vacate his ruling striking such testimony. Such testimony is retained in
the record, not as-evidence that Bonds was discharged for union activities, there being no
such allegation in the complaint, but because such discharge did in fact give rise to an
attempt by Respondent ' s truck drivers to form a union of such truck drivers.
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a Markel checker ," which report stated that Bonds had been driving at the rate
of 40 miles per hour in a 30-mile per hour zone going through Caddo Mills,
Texas. In this connection Bonds testified :
I looked at the ticket and told him , I said, "Well , I guess I
must have got out of line a little bit." I said , "I guess you 're going to fuss
with me a little further." He said, "Well , it's more than that." I said,
"What do you mean ?" He said, "I mean you're fired ." I said, "By whom?"
He said, "I want you to know it is not me ." He said, "It is Mr. Atwell," and
I said, "Well, I'd like to talk to Mr . Atwell," then he said, "well , he's in his
office," so I went in and had a short conversation with Mr. Atwell the
morning I was fired.
Q. What was the conversation?
A. I wanted to know why that I was fired on a small charge like that,
and he said the Company was-had a policy that they was going to have to
carry out and he couldn 't use me no more . I explained to him that I had
driven several years without any accidents , and had also driven a K-7
International Truck for them more miles than any other driver for the
Company had ever driven without any repair jobs . He said it didn 't make a
damn how cheap our operations , he couldn ' t use me, so that concluded that
conversation with Mr. Atwell.
On Monday of the following week, Bonds went to Respondent 's office to
collect his pay and at the same time requested payment of a certain bonu
due for extra mileage he had "gotten" out of his motor amounting to $75. H
was paid his accrued earnings and the bonus requested.
After he received his pay as above described, Bonds and J. R. Veasey, then
employed as a truck driver, went to the union headquarters and secured appli-
cations for membership and authorization blanks and started passing them out
among' the Respondent 's truck drivers.
Veasey was a member of Local 745 at this time. Within the next week or 10
days as a result of Bonds' and Veasey's activities , other truck drivers had signed
application cards, namely Bain, Alexander, Straight, Worley, Pickard, and
Needham or a total of seven employee truck drivers were either members of
the Union or had signed applications for membership.
On November 18, Bain, who was one of the more active union adherents, had
occasion to, be at Carthage, Texas, along with employee Roy Hillin, both of whom
had hauled loads of gasoline to a bulk station at Carthage. Hillin after bring-
ing up the subject of a union, expressed great interest in the Union after Bain
had informed him that a group of Respondent's truck drivers was trying to
organize the Respondent Company. Hillin asked who among the employees
were in such group. Bain named the group as follows : himself, Veasey, Needham,
Worley, Alexander, and Straight.
After the trucks of Bain and Hillin were unloaded at Carthage they went
to Longview for further loads. Upon arrival a certain "fellow" informed Hillin
that there was a long distance call for him from Dallas. Hillin later reported
to Bain that he had been invited to go on a deer hunt along with Smith, Re-
spondent's president. He stated that Smith, "Has invited its older heads on a
19 Markel checkers were employed by insurance companies who insured Respondent's fleet
of tank trucks . These checkers made frequent inspections and observations of the truck
drivers as they performed their duties throughout the State to see that they observed. the
speed limits and traffic regulations and regularly reported to Respondent.
RAY SMITH TRANSPORT COMPANY 1059
deer hunt." Hillin being unable to get a load to haul back from Longview to.
Dallas returned to the latter place with an empty truck.
Hillin never thereafter discussed joining the Union with Bain.
The record discloses, as testified to by Atwell, that on Friday, November 19,.
about 10 a. m., three carloads of people left the Respondent's office for the deer-
hunt. Drivers Hillin, Dunwoodie, and Allen rode with Atwell in the latter's car.
The deer hunt took place in the vicinity of Kerrville, Texas, some 200 miles or-
more from Dallas where the three carloads above referred to arrived at about
5: 30 p. m. on November 19. Ray Smith, Respondent's president, had preceded!
Atwell's group to the locale of the Kerrville deer hunt by several days.
2. The discharges
a. John W. Bain
(1) Events leading up to discharge
Bain was employed by the Respondent as a tank truck road driver on Septem-
ber 4, 1948, and was discharged under the circumstances detailed below, on;.
November 20, 1948. Prior to his undertaking his duties as such truck driver,
employee Dewey Gunn was assigned to accompany Bain on his "Student Trip."
Bain hauled petroleum products for different oil companies serviced by
Respondent's tank truck fleet. He was complimented by John Copeland, operating:
manager of the Respondent's Dallas terminal as follows :
Bain, if all my drivers was (sic) to go to East Texas and haul gasoline like-
you do I wouldn't have anything to worry about?°
Bain signed an application and authorization for membership in the Union.
on November 12 and carried a supply of such applications with him for distribu-
tion among the Respondent's truck drivers with whom he came in contact.
As found above, Bain and Hillin parted company at Longview on or about
the evening of November 18, at which time Hillin returned to Dallas; joined
Atwell on November 19 and then proceeded in Atwell's car to Kerrville, Texas, the.
locale of the deer hunt ; while Bain continued hauling petroleum products for
1 day more and then returned to Dallas, where he arrived at about 9: 30 p. in. on
November 20. He reported to Respondent's terminal and was handed a slip by the
dispatcher which stated : "Bain call Johnny Copeland immediately wheel you:
arrive."
Bain then telephoned Copeland who asked, "How are you getting along?"
Bain replied, "Just fine, I guess. I got 18 loads in East Texas this time. Is
that good or bad?" Copeland answered, "That is good, Bain," and then added
"by the way, . . . Mr. Smith called up from Kerrville n and told me to tell;.
In this connection Copeland testified :
Q. Have you ever told Mr. Bain that if all your drivers went to East Texas like he
did, then it would be fine?
A. Well, I do not recall that I did.
Copeland's credibility as a witness is discussed below. The undersigned credits Bain's.
statement above and finds that Copeland made such statement substantially' as testified
by Mr. Bain.
11 Smith testified that he went to Kerrville for a deer hunt on November 15 and returned
to Dallas on November 21.
889227-51-vol. 89-68
.1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-you* your work was unsatisfactory and we wouldn't need you in service any
more." 22
Bain and Copeland had further conversation at this time which will be
.discussed in detail below in connection with "contentions" of Respondent.
On Sunday morning, November 21, Bain telephoned the terminal and Albert
Millican, superintendent of truck maintenance, answered the phone. With
.reference to his conversation with Millican on this occasion, Bain testified :
I asked him had he heard any more about why we got discharged,
or anything, and he said, "No, I reckon not," and I said, "Well, I think
I know." Well, I asked him, I said, "Do you know?" He said, "No"
I said, "I think I do," and I told him that we were trying to organize, and he
said, well, he said other than that he didn't know what it was.
-Bain further testified :
Q. He didn't know anything wrong with your work other than that?
A. I asked him, I said, "Albert, have I done something to you or tore up
any of the equipment, or have I done anything to make you fellows dislike me
in any way?" He said, "Bain, not a thing that I know of." 23
On Monday morning, November 22, Bain called Respondent 's president , Smith,
.and told Smith that he would like to talk to him. Smith said, "Well, Bain,
you would just be wasting your time." After Bain stated that he did not wish
to argue with Smith, the latter said, "Well, I will be glad to talk to you. Come
on over." Bain called on Smith on the following day, Tuesday, November 23, at
which time the two had a conversation, ` with the result that it was arranged
,that Bain might confer with Atwell, Copeland, Business Manager Leisering, and
.Millican in an effort to convince this group of four that he was entitled to be
reinstated to his job. The meeting was held in Smith's office ; in this connection
Bain testified :
Q. (By Mr. JENKINS.) What happened at that meeting?
A. Well, we all taken a seat there in Mr. Smith's office there, and Mr. Atwell
made the remarks, said, "Well, I guess we all know why we are in here, to
consider your reemployment, reinstatement."
Mr. SEAM. I cannot hear the witness, Mr. Examiner.
Trial Examiner WARD. Keep your voice up.
A. I said, well, I guess that is right, and he said, he said "Bain , we ain't
got much to say," but said . . . I said, "Here is what I want to know,
Bob, why was I fired? Why was I discharged? I want an explanation on
that." I said, "I would like to have my job back, but at the same time I
still want to know why I got fired." He kind of smiled and said, "Well, all
we can say is that your work is not satisfactory." I said, `Bob, in what
, 12 Copeland 's version of this particular portion of the conversation between himself and
Bain was as follows :
. . . So, Saturday night, of the 20th, he called , telephoned at my house and I told
him I had bad news for him, that I was going to have to let him go because his work
was unsatisfactory.
Copeland denied telling Bain that Smith had told him to tell Bain that his work was
unsatisfactory. See footnote 20 above.
23 Millican testified in substance that Bain did make the call above referred to and asked
Millican Why he (Bain) was discharged; that he (.Millican) told Bain "I don't know," that
Bain then said, "I think Io do, we were trying to organize" ; but Millican denied saying,
"other than that I. don't know what it would be." The undersigned credits Bain ' s version
,of his talk with Millican on this occasion.
" Statements made by Smith on this occastion are referred to below.
RAY SMITH TRANSPORT COMPANY 1061
:nianner'is my'-work not satisfactory?" He said, "Well," I guess you know
that.all;we;can say, "it is just not satisfactory." I told him; I said, "Well,
the only thing, Bob, I can figure out is the fact that Union activity." He
said, "Well, ,you know as well as I do." I said, "Is that it?" and .he just
smiled and said, "Welt,'you know' all I can say is your work is not satis-
:factory. "
Q. Could>you,tell us, Mr. Bain, whether or not you ever had any conversa-
tion with anyone after that, I mean any supervisory personnel of the
,Company after that time?
A. After that meeting at that present time?
Q. Yes.
A. Well, we walked right out on the lot there and Bob said, called me
there in .the driveway, said "What-is this I hear about you not wanting to
go to East Texas and haul gasoline down there, I.hear that you have gotten
mad and refused .to :go. " I said, "Bob, I do not know where you heard that
at or how.you;got it, but I can make more money in East Texas than I can
in Dallas:" Johnny (Copeland) was standing there, and I asked him, over
there. I said, "Johnny, have I ever refused you? Haven't I always asked
you to send me to East Texas to haul gasoline?" Johnny said, "That is
right, Bain:"
[In this same tcanneetion, Atwell testified :
Q..... Mr. Atwell, when was it that you first learned that any of your
employees were interested in the Union?
A.. Well, Mr. Wells, the first time I heard anything about it was when
Bain came in there and asked us at this meeting if he was discharged on
account of union activity.
Q. I am ,not .sure I am straight about the chronology of that, Mr. Atwell,
,did he speak to you first or Air. Smith first?
A. I am positive he spoke to Air. Smith first, because he came in and told
,us that Mr. Smith sent for him to see us.
Q. I see. And what reference was made to the Union in your conversation
,with him, or him to you at that time?
A. With Mr. Bain?
Q. Yes.
A. He first wanted to talk to us about getting pis job back. He told us
that he would make us a good, man, and he said, he said, "I would like to
know why I was fired." He said, "Was it because of my association or
,activity with the Union?"
Q. All right, sir, will you just give us that whole conversation as best you
,can remember it?
A. And I said, "No, Bain," I said, "You do not do business like we do busi-
ness," and, I said, "Your work is unsatisfactory, and that is all I have got to
'say.
a m .* o a a
Q. Did Johnny Copeland or Mr. Millican have anything to say?
A. Mr.. Wells, I really do not remember that.
In this same connection Copeland testified :
Q. Did Bain ever state that he thought it [his discharge] was for union
activities to you?
A. Not to me.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Did you ever hear him make question if lie was fired for union activities?
A. I did.
Q. When was that?
A. That was in Mr. Smith's office when he had a conference between my-
self, Mr. Millican, Bob Atwell and Mr. Leisering.
Q. Who was he speaking to?
A. Bob Atwell.
Q. Well, what did Mr. Atwell say?
A. He said his work was unsatisfactory and he was not our kind, of people.-
Q. You heard Mr. Atwell tell him it was not for union activity?.
A. I certainly did.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
But he did make that inquiry, didn't he?
Yes, he asked Mr. Atwell why he was fired.
He asked him why he was fired?
He sure did.
You were present?
Yes, I was.
What did Mr. Atwell say to him?
Told him that his work was unsatisfactory.
That is all he said?
He said, "Bain, you are not our kind of people."
Q. "Bain you are not our kind of people?"
A. That,js right.
Q. Did he tell Bain specifically why he was discharged?
A. No, he didn't.
Q. He just said, "You are not our kind of people," that is all he said to,
him?
A. And, "your work is unsatisfactory."
Q. "Your work is unsatisfactory." He did not tell him why, though?
A.. No.
The record discloses without dispute that neither Copeland nor Leisering made
any comment during this meeting except that Leisering proposed that Bain
call back later to learn of the group's decision on his application for reinstate-
ment. °
From the foregoing it wi11 be noted that Bain, Atwell, and Copeland all testi-
fied to the effect that Bain asked for the reason for his discharge and the only
reason that was given was that "you are not our kind of people" and "your work
is unsatisfactory."
The only Respondent witness who testified contrary to Atwell, Copeland, and
Baln to the effect that the latter had been told the reason for his discharge was
the testimony of Respondent's president, Smith. Smith testified :
Q. (By Mr. WELLS.) What do you mean you recommended to Mr. Atwell
that he be reemployed?
A. Well, I have never recommended that anybody be reemployed. I can't
remember ever having recommended to employ any truck drivers, but _ I
had a long talk with Bain, and he told me that he liked his job, and
that he had just got off' on the wrong'foot, and be knew that he should
have been happy and should have been nice to the agents, and I talked
RAY SMITH TRANSPORT COMPANY 1063
to him some -about the maintenance of his equipment, and he told me
that if I would get him his job back he would see that he would always
be a model employee. He seemed like an awful nice boy. I had known
him previously and I guess maybe I got a little tender hearted about
his family but after talking to Atwell and Copeland, they said that
in view of the fact that he had been very, discourteous to agents, that he
.had been a very expensive operator, that they couldn't operate the business
and take all those kind of people after they had fired them, and it would
appear that I wasn't backing up their authority and responsibility and
they told me, in effect, that they would run their end of it and let me run
mine ; that is what it amounted to.25
3'rom the foregoing and the record it is clear and the undersigned finds that
upon his discharge, Bain asked for the reason therefor and was merely told
that "you are not our kind of people" and that "your work is unsatisfactory."
(2) Respondent's contentions as to the discharge
Respondent contends in substance and effect, (a) that Bain and Veasey 25
were discharged for the reason that they had been discourteous to, and failed to
-'fservice," certain of the Respondent's customers' in a proper manner; and (b)
that the cost of maintenance of the equipment operated by both Bain and Veasey
'was unduly excessive.
As to contention (a), which concerned, (1) alleged discourtesy by Bain toward
H. C. Hill, a bulk station agent for Continental Oil Company at Cleburne, Texas,
:hereinafter referred to as the Cleburne incident; (2) alleged discourtesy by Bain
.and Veasey toward C. C. Norwood, a bulk station agent for Continental Oil
Company at Bonham, Texas, hereinafter referred to as the Bonham incident ;
:and (3) :alleged discourtesy by Veasey toward Thomas Abraham and his son.
Robert Abraham, Texas Company agents at Tyler, Texas, hereinafter referred
ito.as the 'Tyler incident,27
As to the Cleburne incident, the record shows that on or about September 30
Hill wrote Respondent as follows :
'To:: Ray Smith Transport Co. Location Dallas 9/28/48
From : H. C. Hill Location Cleburne
:Subject : Transport drivers
Your drivers continue to come in at night and call me to unload them.
You know we don't unload at night and I am sure they do too. Your Mr.
A. C. Matley came in here and called me at 7: 30 last night and of course
25 On the entire record the undersigned is convinced that Smith did not say anything to
:Bain during his conversation with the latter held on Tuesday, November 23 with reference
-to Bain having said he "should have been nice to the agents" or that Smith in such con-
-versation made any comment to Bain "about the maintenance of his equipment," for the
reason that the undersigned is convinced that the alleged discourtesy to the agents of
the Respondent's oil company customers and the alleged contention that Bain abused his
equipment had not been considered or suggested as the "reason" for the discharge at the
time of Bain's discharge. Moreover, the undersigned is convinced that if Smith had any
reason to believe, on the date of Bain's discharge, that he had been discourteous to agents
or had abused his equipment, he would have advised both Atwell and Copeland, and the
latter would have informed Bain that such was the cause of his discharge.
20 Veasey's discharge is discussed and considered below, following the "conclusions" as to
Bain's discharge.
21 The Tyler incident will be discussed below in connection with Veasey's discharge only.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
I didn't come down till this morning. He was very discurtis ( sic) to me,
as well as some others have been. I wish you would inform all your drivers'
not to call me after I have gone home when they get here. Thanks.
(s) H. C. HILL.
Atwell showed the letter to Copeland who expressed doubt as to A. C. Motely
having called Hill after hours as Motely was a "meek little fellow." Atwell!
telephoned Hill within a day or two and said he was sorry about Motely's action,.
whom Atwell described as a "meek little fellow." Hill then checked his "records"-
and told Atwell that it was not Motely but one Weston, 3 another of Respondent's
drivers, who bad been discourteous toward him.
Atwell testified that he then made a notation at the bottom of Hill's letter of
complaint, which reads as follows :
"John;
I called Mr. Hill & it was not Mr. Motely he was talking about-it was
Weston. Mr. Hill said the other discourteous driver was Bain-he said Bain.
'did not want to pull up & stop so he could drain the tank (s) Bob"
It should be noted that Hill's alleged complaint against Bain as written by
Atwell, and quoted above, states : "Bain did not want to pull up & stop so he-
could drain tite tank." 29
Both Atwell and Copeland testified that the Hill letter with Atwell's note at
the bottom referring to Bain was delivered to Copeland who wrote a reply oiv
the reverse side of Hill's letter reading as follows : ,
Bob, I talked to Bain in regard to this Cleburne deal. Bain informed me-
that he '& Mr. Hill Did not have any trouble at all no words other than a
regular conversation he said as for draining his tank that Dewey Gunn had!
Instructed him to always drain tank before leaving agent, as you know Gunn'
is the one that taken Bain on Student trip 30
Hill, as a Respondent witness, was indefinite , vague, and inconsistent in his
testimony concerning Bain. On cross-examination , Hill testified::
Q. Will you tell us just as best you can recollect what he said and what you
said.
A. Well, he just called and wanted to know what happened, and I told.
him just as near as I could, and I told him, I said, "no, Mr. Atwell-or "Bob",.
I called him, I said, "I didn't write that in order to get anybody's job or
anything of the kind." I said, "I just wanted you to know what happened."'
I said, "You know that we don't unload at night," and I said, "I thought
your drivers all knew it." He said, "that is right, I am awfully glad that
you wrote in and we will see if we can get that adjusted."
Q. Did you say anything else to him in that conversation?
28 Copeland testified that he fired Weston in the latter part of November after Weston had'
been involved in a wreck, "up close to Bonham." Hill's letter, as modified by changing the
name of Motely to Weston, indicates that Weston was discourteous on or about September'
27, 1945, thus it would appear that Weston was not discharged for the alleged discourteous.
conduct towards Hill.
20 This was the only complaint made against Bain at that time. At the hearing however,.
Hill embellished his testimony by crediting Bain with having said, when asked to move his
truck for draining. "Oh, you want to milk the son-of-a-bitch, do you'?" The undersigned'
is of the opinion that if Bain had used the foregoing quoted statement, Hill would have so'
reported in his 'phone talk with Atwell. Since he did not do so, the undersigned does not
credit Hill's statement.
80 Bain testified that Copeland discussed Hill's alleged complaint against Bain and' that
the latter told Copeland that he had had no words with Hill. That Copeland: then, said,,
"Well, we will just forget it."
RAY SMITH TRANSPORT COMPANY 1065-
A. I think I told him probably about this fellow that didn't want to drain,
his truck.
Q. Are you sure about that, that you told him in that conversation?
A. Well, I am pretty sure, yes.
Q. The principal thing you talked about was this fellow calling you up at
night?
A. That is right.
Q. Study about that just a minute, if you will, Mr. Hill, and tell us whether-
or not you can be sure that you mentioned this truck draining?
A. I am pretty sure I did.
Q. As I understand it, you, on this phone conversation, you, did not:
mention the driver's name?
A. I did not mention any driver's name.
Q. You just clout remember whether you did nor not?
A. I did or didn't.
Q. You don't remember whether you did or not?
A. No, I wouldn't say I did or didn't.
Q. As a matter of fact, you just didn't know the names of those drivers?
A. No, I didn't know them offhanded.
Q. As far as you can recollect, you had not checked back against your-
tickets at the time of that phone call to ascertain the names?
A. I probably hadn't.
On redirect examination, however, Hill says he went through his records at
Atwell's request and then determined that the driver under discussion was Bain al'
Insofar as the Cleburne incident is concerned, the record will not support a
finding that Bain was the driver who was discourteous to and refused to move.
his truck for Hill, if in fact, any Respondent driver so conducted himself. More-
over the record indicates that both Atwell and Copeland considered the matter as-
closed after Copeland had added his comments to Hill's letter on or about
September 30, as found above. In any event, the alleged discourtesy could not
have occasioned Bain's summary discharge on November 20, 1943 82 It is so^
found.
As to the Bonham incident, this incident allegedly involved both Bain and
Veasey. Respondent's witnesses, in substance, testified that Respondent had-.
closed a transportation contract with the Continental Oil Company in late Octo-
ber 1948. That the first delivery of petroleum products to Bonham, where
Norwood was agent for Continental Oil Company, was made on November 6..
Norwood testified in substance that two of Respondent's trucks made deliveries.
to his station on November 6. That "when the first tank was supposed to have
been unloaded ready for what I call backing up to finish unloading," be asked:
the driver to "back his truck up to a certain point, and told him where." Accord-
81 Such "records " would have disclosed the date of delivery by whichever truck driver
made it . Hill stated that Bain's visit occurred "around noon ." Hill testified :
Q. Around noon . Can you place that with respect to whether it was, what month.
it was in?
A. Well , really, I couldn ' t. Some time in early Fall, it seemed like, probably-
September.
12 As stated below in the "conclusions ," Bain was not informed at the time of his dis-
charge that such discharge was for discourteous treatment toward Respondent's customers'
agent ; and learned of such contention for the first time at the hearing herein.
1 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing to Norwood , "Bain, he hollered at the other boy 'we got another milker ; give
him a sponge so we can get it all'." Norwood further testified that when his
district sales representative came to call upon him "he told him what the man
said and what was passed ." He identified the district sales representative as
Paul Lawson. According to Norwood , there was a third truck , in addition to the
two Respondent trucks, at his station on this occasion . Norwood testified :
Q. (By Mr. WELLS.) Was there some other driver in there unloading when
those two Ray Smith trucks came up?
A. Well, I believe there was . There was three trucks there but I don't
remember whether this other one was ahead of'them or behind them, I
wouldn't say about that , but there was three trucks.
With further reference to the driver of the third truck, Norwood testified :
Q. Was he still there when it [the alleged remark ] was made?
A. Well, I don ' t remember . I don't think he was.
Q. Now , you say there were two trucks and, Mr. Norwood , two Ray Smith
trucks. In connection with the unloading of which truck was it that the
remark was made.
A. Well, I couldn't say about that. I don't remember which of them boys
unloaded first. But I do remember that Bain was the man that done the
most of the talking.
Q. You can 't remember whether they went on and unloaded another truck
after they made that remark?
A. Well, I am so situated I can unload two at one time, and I think I
unloaded two together , and then the other one was one of Ray Smith trans-
port trucks , the last one that was unloaded , I'm sure, was Ray Smith.
Q. Was the remark made in connection with the unloading of one of the
first two trucks or in connection with the unloading of the last Ray Smith
truck?
A. It was the first one that was finished up.
Q. It was made in connection with the first one - that was finished up?
A. Yes, sir.
Norwood testified that then he made his report to Paul Lawson, the Con-
tinental representative , as follows:
Q. Now, when you made the report to the man over you with Continental,
did you give him the name of these drivers?
A. I told him I had it on what we call a manifest over there . He could
go and look for himself and see who they were.
Q. Did you tell him what trip it was.
A. Yes, sir.
M. G. Boone, employed by Continental Oil Company , testified that he had been
so employed since February 1, 1925 , as traffic representative in charge of trans-
portation , Fort Worth Division ; that sometime between November 9 and prior
to November 13, he got a report through Lawson, the Continental district sales
representative , concerning the service that Respondent was rendering the Con-
tinental at Bonham. In this connection , Boone testified :
A. Yes, sir, I did get a complaint on the first loads that went into Bonham.
Our agents said that the drivers were very discourteous and one driver
particularly , that, you know , if the transport is not in exact setting level
RAY SMITH TRANSPORT COMPANY 1067
when you unload they won't drain properly and he then asked particular
driver to back the transport up so he could get the remaining gasoline out
of this ; this transport driver said, "If you are that type, get you a sponge
and several other things and I don't remember the exact complaint on it
but I do remember that portion of it.
Boone further stated that his sales representative in making this report by'
telephone informed Boone of the names of the two Respondent truck drivers.
Boone testified in substance that on November 13, 1948, Atwell called him by
telephone from Dallas at Boone's" home in Fort Worth with reference to joining
Boone at a football game to be played on that date between Texas Christian
and Texas Universities ; that during the course of this telephone call he-
informed Atwell that two of the Respondent truck drivers had been discourteous
to the Continental agent at Bonham. In connection with the naming of the truck
drivers, Boone testified :
Q. You never mentioned, did you, in your telephone conversation the name
of Bain and Veasey to Mr. Atwell on the telephone?
A. What time-
Q. I'm talking about the time you talked with him [Atwell] on the 13th,
about the TCU game.
A. Yes, Sir.
Q. Well, how did you happen to mention it to him. Did you have the-
records in front of you?
A. I had the complaint just the day before that and it was part of my-
duty to get right on it.
Q. Was this complaint in writing.
A. It was a telephone conversation.
Q. From Mr. Lawson?
A. That is right.
Q. Was it noted on a memorandum pad?
A. It was at that time, yes sir.
Q. Did you have that before you while you were talking?
A. On the 13th of November?
Q. Yes.
A. No sir.
Q. You didn't have it before you?
A. No sir, because my memory is that good.
Both Boone and Atwell testified that they met together with their wives ands'
attended the football game and that no mention whatsoever was made about
the Bonham incident during the game or at all during this meeting between them)
on November 13.
With reference to the November 6 trip to Bonham, Bain testified that he re-
called making the trip but did not recall the order of unloading as to whether-
there was a truck ahead of him; he denied that there was any statement made
with reference to "a sponge," or that he refused to "rock the truck."
Veasey testified that he and Bain made deliveries to Bonham on November 6;
that there was a truck ahead of them unloading, which he believed was "Texas
as Prior to his employment by the Respondent on January 1, 1348, Atwell bad been
employed by the Continental Oil Company for about 2 years as assistant division manager
at Iiouston , Texas.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-Oil"; he "imagines that Bain hooked up first" ; 84 and he "don't remember him
[agent] having to tell me" to pull his truck up or rock it.
According to Veasey's recollection a third truck unloaded first, Bain unloaded
second, and Veasey unloaded last.
Boone testified however that his information was to the effect that the Texas
,Oil Transport truck unloaded last.
In connection. with the Bonham incident, Atwell testified, in substance, that
on November 13, he called Boone at Fort Worth, in connection with their at-
tending a football game at Fort Worth between TCU and Texas University
on that day ; that Boone' agreed to meet Atwell and wife at the game at "the
main gate" ; and stated, ".. . before we get going, I don't want to ruin your
football game, but I have got some bad news for you. . . . I have had a com-
plaint about two Ray Smith Transport Company drivers that delivered the
first load to Bonham" ; that when he asked the nature of the complaint, Boone
.stated that the two drivers "were discourteous" ; while Boone did not say
"when he had gotten the complaint," he did say, "I will definitely say this,
that they were discourteous" ; and that Boone concluded as follows ; "I want
you to clean it up and check into it, because . . . you have worked hard to get
.this business and you go out and sell your good will, and . . . you have torn it
down over night." In connection with the foregoing, Atwell testified :
Q. Well, now, when you learned that on that new account you had gotten,
what was your reaction to it?
A. Well, naturally, I was very upset.
Atwell further testified, in substance, that he returned to Dallas the evening
of November 13; that he and Smith went to Houston on November 14 to keep
an "appointment with a man Sunday night" ; that he returned to Dallas
`November 17, but did not talk to Copeland concerning Boone's complaint that
day ; that he went to his office on the morning of November 18 and discussed
Boone's complaint at length with Copeland ; informed him that the complaint
concerned the first two loads transported by Respondent into Bonham, and told
,Copeland to check records and find out who the drivers were.86
Atwell further testified, in substance, that Copeland later reported that the
,drivers were Bain and Veasey ; that such information was relayed by Copeland
..on November 18, but he (Atwell) gave no instruction for their discharge on
that day ; but told Copeland, "I will discuss this with you a little later on";
and met with Copeland on Friday morning, November 19.
Atwell testified :
Q. What did you tell Mr. Copeland.
A. I told Mr. Copeland this, I said, "Johnny, we have gotten down to the
point where we are going to have to take action, we are not going to be able
to hold our business and operate this company with things like this going
on." I said, "If you and I expect to continue in our capacities, doing business
management, why, we are not going to last very long." I said, "Let's-do
something about it." Atwell testified :
Q. What did you mean when you said, "Let's do something about it?"
A. Let's discharge these men.
As between Bain and Veasey.
It should be noted, as set forth above, that Boone testified that he gave the names
of Bain and Veasey to Atwell in their telephone conversation on November 13.
RAY SMITH TRANSPORT COMPANY 1069
Atwell further testified that on this occasion which allegedly occurred on the
:morning of November 19 he told Copeland, "My suggestion to you is that if you
have any unsatisfactory drivers at all, any other unsatisfactory men, such as
these two fellows, then now is the time to discharge them" ; and that thereafter
Copeland named Needham, Pickard, Worley, and Straight, as among those he had
"a tab" on and as being under consideration for dismissal.98
On cross-examination, Atwell testified :
Q. Now, as I understand your testimony, Bain and Veasey were both
fired without being given an opportunity to state their side of what happened
up at Bonham?
A. State their side to me?
Q. To any official of the company?
A. Yes, that is right.
The record shows without dispute Atwell telephoned Copeland some four or
five times a day while the former was in Houston-between November 14 and 17,
but on no occasion suggested to Copeland that he check into or investigate the
alleged complaint at Bonham."
The foregoing and the record, at the most, indicate that other than Boone's
-testimony that Bain and Veasey had been "discourteous" to the agent at Bonham
,on November 6, the Respondent had no information as to what incidents composed
the alleged discourtesies until 2 or 3 weeks before the hearing herein began on
May 10, 1949. In this connection Agent Norwood testified :
Q. Did you tell anybody connected with the Ray Smith Company about it?
A. No, I didn't. -
Q. When did you first tell anybody connected with Ray Smith Company
about it?
A. Oh, about two or three weeks ago.
Q. Who was it you told?
A. Mr. Boulboulle.38
The Respondent contends on the basis of Boone's testimony that both Veasey
and Bain were discourteous. Norwood however referred to but one truck driver
as the one he asked to move his truck for draining as to the one who allegedly
:made the "sponge" remark.
On the record it is not possible to determine, assuming that such a remark
was in fact made, which of the three truck drivers made it ; and on the record
and such assumption, it is equally clear that both Veasey and Bain could not
have been discourteous as the result of such remark.
The record will not support a finding that either Bain or Veasey were dis-
-courteous to the Bonham agent on November 6. It is so found. Contention (a)
is without merit.
"For the reasons detailed below the undersigned is of the opinion and finds that Atwell
did not instruct Copeland on November 19, 1948, to discharge Bain and Veasey , or sug-
gest to Copeland that if he had any "other unsatisfactory men, such as these two fellows,
then now is the time to discharge them" ; and that any such instructions for any of the
-discharges at issue herein were relayed to Copeland after Atwell had arrived at the locale
of the Kerrville deer hunt.
81 As related hereinabove , Atwell testified that he "was very upset" in his reaction to
such complaint.
88 Boulboulle testified herein on May 16, 1949 , and stated that he talked to Norwood
"about two weeks ago " ; and that such talk was about Bain and Veasey.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to contention (b) having to do with the alleged excessive cost of mainte-
nance on both Bain and. Veasey's trucks was apparently advanced for the-
first time at the hearing herein by Respondent as an afterthought and without
any basis in fact, in an effort to justify its discharge of Bain. and Veasey. With.
reference to the alleged reasons for these two discharges, Atwell, on direct--
examination, testified :
Q. When you made the decision [as] to Bain and Veasey, will, you please,
tell the Examiner why they were discharged?
A. Mr. Examiner, the reason Bain and Veasey were discharged was due-
to the fact that they were not servicing our customers properly and that.
they were discourteous to them. That was the reason they were. fired.
Q. Now, Mr. Atwell, regardless of a man's maintenance record, is it or not
correct that if he is discourteous to your customers you will let him go?
A. . . . The fact that Bain had his motor replaced 3°' didn't have any--
thing to do with me when I instructed Johnny Copeland to fire Bain and:
Veasey, because to me that was secondary.
Albert Millican, who testified that he had "charge of maintenance on trucks,"*
in connection with Bain's truck testified that the engine had been replaced ; and.
that in his opinion 90 "the maintenance was high on this truck."
Bain credibly testified that at the time the engine in his truck was replaced.
that he received no complaint from Copeland and that, as Bain testified :
He [Copeland] just told me the conditions, they knew the condition of
that old motor that was in my truck, and that they put me in a new one,,
and hoped I would have better results out of the new one than I did [out];
of the old one, because they knew the old one was burned up whenever I.
got a hold of it, whenever I was hired and put on that truck.
Other than Millican's opinion testimony that maintenance on Bain's truck:
was high there is no credible testimony in the record tending in any manner to
indicate that Bain mistreated his truck or was careless in its operation. Mil-
lican's opinion in this connection is without probative value. The above and"
the record will not support a finding that Bain's maintenance costs on his truck
were, under the conditions of the truck when he received it, unduly excessive..
It is so found. Contention (b) is without merit.
(3) Conclusions as to Bain's discharge
The record discloses that Respondent believed that it was not subject to the-
Act and therefore felt that it could refuse to assign any specific reason for the
discharge of Bain, Veasey, and the other five dischargees listed in the complaint ;
3 The Respondent introduced a "Repair or Maintenance" record on Bain's "Tractor-
Type" Dodge truck indicating that a "New" engine and accessories were installed on
November 1, 1948, at a cost of $1,025.89. It would appear that if Bain had been re-
sponsible or in any manner chargeable for this expensive repair he would have been
discharged on November 1 rather than 19 days later when he was summarily discharged!
on November 20.
"While the undersigned, over the objections of the General Counsel and counsel for
the Union, permitted Millican to give opinion testimony inasmuch as he was the shop-
foreman, the undersigned finds that Millican was not sufficiently qualified to give expert
and accurate opinions covering the operation of all types of, trucks operated' by the.
Respondent. The undersigned makes no finding herein which is based solely on Millican's'
opinion testimony. .
1iAY SMITH TRANSPORT COMPANY 1071
the record further discloses that there is keen competition between Motor Trans-
port companies in the State of Texas ; and that if Respondent's truck drivers
were in fact, and to the Respondent's knowledge, treating its customers' agents
:in a manner that might lead to a loss of Respondent's customers, the Respond-
ent would normally have investigated the alleged misconduct by its drivers and
upon a verification of such misconduct would have promptly discharged the
,discourteous drivers ; would have informed them and all other Respondent drivers
that the drivers so discharged had been discharged for such misconduct, all to
the end that both its drivers and its customers would know that Respondent
would not tolerate such conduct by any of its drivers.
The undersigned is of the opinion that if the Respondent had actual knowledge
on November 20 that Bain and Veasey had been guilty of misconduct toward its
-customers' agents, or had reason to so believe, it would have informed both
Bain and Veasey of such alleged misconduct and would have broadcast to all
and sundry that Bain and Veasey were discharged for the alleged misconduct.
Since the Respondent did not take such course of action, the undersigned is
.of the opinion that it had no knowledge of any such misconduct or any informa-
tion upon which it could have based a bona fide belief that such conduct had
occurred."
On the basis of the foregoing and the entire record the undersigned is not
persuaded and cannot find from such record that Atwell and Copeland held a
-conference on November 19 with reference to Bain and Veasey's discharge or
that Atwell did on November 19 direct Copeland to discharge Bain and Veasey,
•or that Atwell at such time suggested the discharge of "any other unsatisfactory
men, such as these two fellows," and stated, "then now is the time to fire
them." 42
The foregoing conclusions are further supported by the manner in which
Copeland discharged all seven drivers. Both Atwell and Copeland contended
and testified that the latter personally made the decisions to fire all dischargees
except Bain and Veasey. It is significant that in making the discharges Copeland
not only informed six out of seven of those discharged that he had such instruc-
tions from either Smith or Atwell, "From the deer hunt," but also told them that
41 If Respondent did not believe or had actual knowedge of misconduct by Bain and chose
not to tell him of such knowledge, or to publish such knowledge, knowing, as it did, that
Bain was telling all and sundry that be had been discharged for union activities ; the
refusal by Respondent to announce that the discharge was for misconduct toward its
customers' agents, would naturally cause other, employees to conclude that Bain was
fired for union activities and would discourage membership in the Union ; and would,
under such circumstances, indicate that Respondent elected to take a chance on losing
its customers in order to discourage its employees from joining the Union.
82 There is no evidence of or any suggestion in the record that any other drivers had
allegedly been discourteous to Respondent's customers' agents. Atwell, testifying before
Copeland herein quoted Copeland as having referred to dischargees Pickard, Needham,
Worley, and Straight as being under consideration for discharge. That as to Pickard,
according to Atwell, Copeland said that as soon as he could "establish the fact that he
didn't need glasses , I am going to let him go" ; as to Needham , Copeland was "going to
clip him," if he had another valve job on his truck, then allegedly in the shop for checking ;
and as to Worley and Straight, according to Atwell, "Johnny mentioned something about
having a tab" on them. Since the undersigned is of the opinion none of the discharges
was discussed between Atwell and Copeland on November 19, Atwell's testimony in this
connection would indicate-(1) that he was seeking to establish that all dischargees had
been tacitly selected for discharge before Hillin had had an opportunity to name them as
union adherents after his arrival or en route to the Kerrville deer hunt, and (2) made
it difficult under the circumstances for Copeland to testify to the contrary when subse-
quently called as a witness . See footnote No. 93.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was instructed to inform the dischargees that they were fired because their
work was "unsatisfactory."
It would appear that if Copeland , on his own authority and initiative , selected.
the group of five drivers for discharge , he would have felt such discharges were
warranted and would have had no hesitancy in treating the discharged drivers
as men unfit for employment by the Respondent and would have effected such,
discharges in a manner different than he actually followed . The fact that he
refused to tell any driver, except Needham ," why they were discharged when
asked to do so leads to a fair inference that he was acting on specific instructions
when he assigned "Your work is unsatisfactory " as the reason for such dis-
charges, notwithstanding that all discharged drivers asked for the reasons for
their dischar_ gee." Copeland 's- statements . to the discharged drivers, as As found'
hereinabove and below , indicates that Copeland did not personally make any
of the selections for discharge ; that he did not personally approve of such
selections ; and that he took no personal responsibility in making such selections.
All of which further indicates that the orders for such discharges came as a.
surprise to Copeland.
From the foregoing and the entire record , the undersigned concludes and finds
that Copeland had no instructions prior to November 20 to discharge Bain and
Veasey or either of them ; that he did not personally select any of the seven
drivers for discharge ; and first learned that all seven of the drivers, except.
Pickard," were to be discharged when he received instructions to that effect from
Atwell and/or Smith on November 20, 1948.
On the basis . of the foregoing and the record the undersigned does not credit
the testimony of Atwell and Copeland to the effect that . on Friday ,.,.November
19, during a conference between them held in Dallas, . they directly discussedi
the proposed discharges of Bain and Veasey, or that they indirectly referred to^
Worley, Needham , and Pickard as likely prospects , for discharge on such day'a
Having found that Bain and Veasey., were not discharged for the reasons
assigned by Respondent at the hearing , we next consider the evidence which the
undersigned believes discloses that Bain and Veasey and five other drivers were,
as alleged in the complaint , discharged for union activities.
The facts indicating a discriminatory discharge of Bain, Veasey , and the five
other drivers ( whose discharges are discussed separately below ) may be sum-
'8 Needham 's discharge is discussed in detail below.
"No Respondent witness testified as to why it assigned "unsatisfactory work," as the
reason for sii out of the seven discharges . While Smith , Copeland , and Atwell each
testified that they did not'discuss any of the discharges , by telephone with Copeland during-
the Kerrville deer hunt , the fact remains that Copeland did assign "unsatisfactory work"
to all but Needham ( who was not fired until November 22), as the "reason " for the-
discharges and stated that such assigned reason was given to the dischargees at Respond=-
ent's Instructions . In order to have received such instruction on November 20 Copeland`.
would have had to have word in some manner from Atwell or Smith , both of whom were
admittedly at the Kerrville deer hunt on that day.
'6 It should be noted that Bain. did not , as found hereinabove , list Pickard as one of the
drivers who had signed union application cards, when he informed Hillin of the names
of those drivers who were attempting to organize the Union in Respondent's plant.
"This credibility finding is made after giving due consideration to Boone 's testimony
wherein he testified that he made the complaint against Bain and Veasey by name, on
November 13, 1948. The record discloses that the Respondent made no investigation of
such alleged complaint until a few weeks before the hearing in the instant matter began
in May . 1949 . The. undersigned has found hereinabove that the "Bonham . incident," th&
subject of Boone ' s complaint , is without merit.
' The specific finding in Veasey ' s case appears below in connection with a discussion
of his case and the "Tyler Incident."
RAY SMITH TRANSPORT COMPANY 1073'
marized under the following points: (1) The Respondent's antiunion conduct
and statements; (2) the summary dispatch with which all seven drivers were-
discharged without advance warning or investigation of any alleged misconduct ;
and (3) the fact that the seven drivers so discharged were all of the known and?
active union adherents employed by Respondent.
Point 1
During Bain's interview with Smith on November 23, the latter referred to the-
discharge of Vernon L. Bonds described hereinabove. In this connection Bain.
credibly testified :
Q. •(By.,Mr:dENiiiNs.) What did?Mr. Smith.sgy,abput, iqp s,?
A. He just made the remark, he said, "I guess a lot of you fellows think
Mr. Bonds was fired on account of that ticket he got" [Markel Co. report
that Bonds was driving 40 miles per hour in a 30-mile zone] I said, "Yes
sir," I said, "I presume that is what it was." I said, "If it was anything,
else I didn't know." He said, "Well, Bonds was a good man, but he just:
got off on the wrong track. It wasn't the ticket he got fired for." 48
During this same conversation of November 23 Smith told Bain that:
It looked like for twenty-years or so people would learn that they can't-.
organize. my company, my business. . . . I can sell out and live good.
the rest of my life: . . . I don't have to become an organizer.... I've got
a million or so.dollars invested here in, this; equipment. I don't intend to see•
it organized.
In a further discussion of the Union, Smith informed Bain that :
Before I will see my company organized I can run everything I have got
in the Trinity River.49
Copeland likewise engaged in conduct violative of Section 8 (a) (1) of the.
Act, consisting of Copeland's query to Alexander shortly prior to his discharge,
as to "what he knew about the Union," and Copeland's tacit admission that "it
might have been the Union," which occasioned Alexander's discharge; Copeland's
41 As is found hereinabove , Bonds was discharged by Respondent within a short time
after he had indicated to Atwell that he ( Bonds) thought a union would benefit Respond-
ent's employees.
49 Smith categorically denied making this and other statements testified to by Bain-
and as to some of such testimony, Smith stated, "I remember no such statements" ; and
"I don't recall any such statements." Smith admitted that he was informed before his.
meeting with Bain on November 23, that Bain "was claiming that he had been fired be-
cause of union activity." Smith testified:
Q. You dian't even make any inquiry to find out whether there was any union
around or not?
A. Well, I knew that there wouldn ' t be any union around there . The Union can't
give those boys anything, Mr. Wells. We have a large percentage of our employees,
drivers, that make more than $ 5,000 a year . You can't give that to them and you
couldn't sell the Union to that bunch of people . out there in a million years. [Em-
phasis supplied.]
The undersigned does not credit Smith's denial of this and other testimony of Bain.
Smith's answer quoted next above is not set forth as, or found to be, an unfair labor
practice under, the Act, but as being of the same exaggerated type of expression used by
Smith . in his threat to run his equipment into the Trinity River before he would permit
his company to be organized.
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further admission to Worley when the latter asked him if "it could be possible
-.that it (Worley's discharge) was caused from the activity I had taken in the
Union," to which Copeland replied, "I wouldn't be surprised" ; Copeland's state-
ments to Pickard made when he discharged Pickard, who asked, "Johnny, would
it be over the Union," to which Copeland replied, "Well, it might be," that he did
not know ; and Copeland's further statement to Pickard that if he had kept his
"nose out of the Union business," he would not have "got fired like the other boys
-did." 60
Conduct of a like nature was Atwell's statement to Veasey when the latter
inquired as to his chances for reinstatement, that the only way he (Atwell)
would even think of reinstating Veasey would be for Veasey "to forget about
the Union and not have anything to say about it," to report to Atwell anything
that he (Veasey) "heard about the Union on the job."
Point 2
It is undisputed that all seven drivers concerned herein were discharged with
summary dispatch . Bain was informed of his discharge by telephone on Novem-
-ber 20; Veasey and Alexander were jointly informed of their discharge when
they reported for work about 4 o'clock on the morning of November 20; Straight
reported for work at about 4 a. m . on November 20, and was likewise discharged.
-Worley was discharged when he reported for work at 6 o'clock on that same
morning; Needham was discharged when he reported for work on November 22;
and Pickard was likewise discharged when he reported on November 26. With
the exception of Needham , none of the seven drivers was informed of the
-alleged reason for their discharge and no investigation had been made as to any
alleged misconduct.
The Board and the courts have long held that discharges made with summary
-dispatch , without investigation of the reasons claimed by dischargees in denying
charges advanced by employers , as the cause of such discharges , to be evidence
of a discriminatory discharge."
In the instant case, the Respondent advanced no specific reason as the cause
for six of the seven discharges and had made no investigations , prior to the
discharges of Bain and Veasey, of the alleged reasons for their discharges, which
:alleged reasons were advanced for the first time at the hearing herein. The
-summary discharges of employees without assigning specific grounds or reasons
upon request , thereby preventing the dischargees an opportunity to deny such
-reasons or to offer proof that such reasons are without merit , or to demand an
investigation thereon, leads to the conclusion that such summary discharges were
-discriminatory . It is so found.
Point 3
Among other alleged reasons for the discharge of the five drivers in addition
to Bain and Veasey the Respondent contended that in the normal course of
its business it needed fewer drivers in the fall and early winter when the
-demand for petroleum products was less than in the spring and summer months.
Copeland and Atwell so testified in substance.
"As is found below, Pickard was not discharged until November 26.
61 See Brczner Tanning Co., Inc., 50 NLRB 894; Illinois Toot Works, 61 NLRB 1129,
153 F. 2d 811 (C. A. 7) , and Carter Carburetor Corporation, 48 NLRB 354, 140 F. 2d
-714 (C. A. 8).
RAY SMITH TRANSPORT COMPANY 1075
Had such a reduction in drivers been required for economic reasons, it would
appear that Respondent would have examined the records of all 87 of its
then truck drivers and then laid off the least efficient of them in an orderly
manner and with advance notice. The record disclosed that Respondent has
two pay days per month. For work performed from the 1st to the 15th the
men are paid on the 20th of the month; for work from the 15th to the 1st, the
men are paid on the 5th of the following month. None of the discharged drivers
was terminated at the end of a regular pay period and none had received any
advance notice of his pending discharge.
The Respondent contends that it had no knowledge that any of the dischargees
had engaged in union or concerted activities, yet in discharging 8o2 drivers it
included the 7 employees who had recently signed union cards or renewed their
union activity, as did Veasey, in the group discharged. In its selection of
7 of 8 employees for discharge out of a total of 87 employees the Respondent
succeeded in selecting all active union adherents for discharge. Such conduct
raises a presumption that the 7 drivers in question were discharged for union
activities.53 This presumption would prevail, particularly in cases where, as
here, the alleged "reasons" for such discharge proved to be without merit 61
On the basis of the foregoing facts and upon the entire record, the undersigned
52 Copeland testified that he discharged one Rousel at the same time the seven others
.were discharged but did not fix the date of such discharge and the record contains no
evidence as to why Rousel was discharged, if in fact he was terminated, except Copeland's
statement that he informed Atwell on November 19 that Rousel had a "heavy foot" and
he was considering his discharge. Nor does the record disclose whether Rousel was
summarily and without warning discharged without a statement of charges allegedly
warranting such action. On the record the undersigned cannot find that Rousel was
discharged at the time the seven drivers concerned herein were fired.
53 Hillin, an "Older Head," who rated an invitation to the Kerrville deer hunt as a.
guest of Respondent's officials, was not called by Respondent to refute the inference that
it was he who had relayed Bain ' s information as to who had become active in or joined
the Union.
64 On this point see S. TV. Dixon, d/b/a U. S. Trailer Manufacturing Co., 82 NLRB 112 ;
wherein the Board stated :
The mathematical possibility that selection of the nine employees terminated on
July 25 bore no relationship to their common interest in the union and their joint
attendance at the meeting on July 24, but resulted from the operation of chance, is
exceedingly remote.20 While such possibility, however remote, may not be ignored
altogether, the mathematical improbability that the attendance at the union meeting
of these nine employees was disregarded as a relevant factor in their choice for
termination is so great as to cast the burden upon the Respondent to come forward
with a plausible and convincing explanation demonstrating that the action taken by
it with respect to each affected employee was based solely upon nondiscriminatory
consideration.
This the Respondent has not done. As found above, among the employees termi-
nated were painters, welders, cabinet makers, and laborers from which only those in
each category who attended the union meeting were terminated on July 25. No plausi-
ble or credible explanation was advanced for the retention of any of the 21 retained
employees in preference to the 9 let go.
20 At the time of the lay-offs Respondent employed 30 production and maintenance
employees. Of this group, only 9 had attended the union meeting on July 24. On
the basis of pure chance, the mathematical possibility of terminating these 9 em-
ployees who attended the union meeting, and no others, was less than 1 chance in
14,000,000. The situation is comparable to that of a blind-folded person selecting
at random 9 red marbles in succession from a bowl containing 30 marbles, 21 of
which are white , and 9 are red. See Mills Statistical Methods . Henry Hall & Com-
pany, New York, 1924, p. 518, "The Multiplication of Probabilities." See also Matter
of Harold Y. Baker Company, 71 NLRB 44.
889227-51-vol. 89-69
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finds that the Respondent discriminatorily discharged J. W. Bain on November
19, 1948, in violation of Section 8 (a) (1) and (3) of the Act!'
b. J. R. Veasey w
(1) Events leading up to discharge
Veasey was employed by the Respondent as a tank truck driver in either April
or March 1948, and was discharged under the circumstances detailed below on
November 20, 1948. He drove a K-International truck with a trailer and hauled
petroleum products between different points in Texas for major oil companies
operating in Texas with whom Respondent had contracts for the transport of
their products. Among the companies for whom Veasey transported such prod-
ucts were Continental Oil Company, Gulf Oil Company, Texas Company, Premier
Oil and Refining Company, Humble Oil and Refining Company, and McMurry
Refinery. Veasey worked under the supervision of Copeland and during his
employment was complimented by Copeland on the character of his work, and
the manner in which he handled his equipment. On one occasion, Copeland
informed Veasey that he had a report that Veasey was driving 50 miles an
hour. The report was not shown to Veasey and other than the statement that
such a report had been made, Copeland said nothing further to Veasey.
Veasey was a member of Local 745 when he started to work for the Respondent.
He was a next-door neighbor to Vernon Bonds, above referred to as having been
discharged on or about November 7, and accompanied Bonds to :union head-
quarters after Bonds' discharge where the two secured a supply of application
cards for membership in the Union. Thereafter Veasey solicited other truck driv-
ers to join the Union and did so on the Respondent's premises. He usually solicited
while "gassing up" and had signed Needham some 7 to 8 feet from Copeland's
office, where the latter could have heard the conversation had he been in his
office or the dispatcher's office.
Veasey testified without dispute and the undersigned finds that a few days
before his discharge he was shown insurance reports on his conduct as a
driver, the last one of which reported his conduct on the highway and toward
the public was excellent and such report contained no complaint.`
On the morning of November 20, Veasey and truck driver Alexander reported
to the Respondent's terminal and when they went to get their "gas tickets"
and to find out where they were going on that date, they were greeted by Copeland
who said he had bad news for them. When Veasey asked what the news was,
Copeland said that he had had a call from Kerrville "which said that Veasey's
work was unsatisfactory" and that his services would be needed no longer.
At the time Copeland discharged Veasey and Alexander, he had a list of names
in his hand with reference to which Copeland said he had "a 'phone call from
The general findings made in this subsection applicable to dischargees other than Bain
will be incorporated by reference with the conclusions in connection with such other
discharges, discussed below.
m While Veasey's name appears with the above spelling in both the charge and the
complaint, he is at all times referred to in the record as Veazey.
61 The Respondent did not introduce any Markel Insurance Company reports in evidence,
which were made after agents of the insurance company had checked the truck drivers
as they performed their duties.
RAY SMITH TRANSPORT COMPANY 1077
Kerrville" down on the deer hunt to discharge us because our work are not
satisfactory ." Copeland there stated that regardless of what had happened[
he had nothing to do with it in any way and that he wanted all the dis-
charged employees , including Veasey and Alexander , to always be his friends;
that he "wouldn 't have it happen for anything in the world if he had anything
to do with it."
Shortly after his discharge , Veasey went back to the Respondent 's terminal;
and made an effort to see President Smith who was not present . Veasey then,
talked to Vice-President Atwell as the latter was leaving his office and inquired
as to his chance of being reinstated . In this connection Veasey testified :
Q. What was that conversation?
A. He said that the only way he would even think about restating (sicp
me was for me to forget about the Union and not have anything to say about
it, and report to him anything that I had heard about the Union on the job.
Q. What did you say to that?
A. I didn't have any say.
Q. You just left.
A. No sir, I didn 't know what to say after that 69
(2) Respondent's contentions as to the discharges
Respondent contends, in substance and effect, (a) that Veasey and Bain BO
were discharged for the reason that they were discourteous to, and failed to
"service," certain of the Respondent's customers in a proper manner; and (b)
that the cost of maintenance of the equipment operated by both Veasey and Bain
was unduly excessive.
68 In this connection Copeland testified on direct examination as follows :
Q. What happened when.Veasey came to work?
A. I just told him that I had some bad news for him, that I was going to have
to let him [go] because his work was unsatisfactory.
- O Q O C O 4 C'
Q. Mr. Copeland , I will ask you if, when you saw Mr . Veasey on the morning of
November 20th, you told him this, "Well , I have had a call from; Kerrville that your
work is unsatisfactory?"
A. I did.
Q. Was anything said about Union activity at that time?
A. No, there was not.
Some 12 questions later Copeland testified
Q. Did you ever tell Mr. Veasey that you had a "'phone call from Kerrville deer
hunt to discharge Mr. Veasey and some other men because their work - was unsatis-
factory?"
A. I did not . [ Emphasis supplied.]
It should be noted that Copeland admitted he had a call from Kerrville when- the ques-
tion was limited to Veasey, but denied he had such call when the question included "some
other men" in addition to Veasey . On the above and the record the undersigned is
convinced and finds that Copeland did tell Veasey on November 20 that he had such a
call from Kerrville.
59 Atwell categorically denied making the above statement which is credited' by the
undersigned . Atwell' s credibility is discussed elsewhere herein.
80 As found and detailed above , in connection with Bain ' s discharge , the Respondent con-
tended that both Veasey and Bain were discharged for identical reasons. The testimony;
however , did not connect Veasey with the alleged discourtesy toward Agent Hill : in: the
Cleburne incident, nor did the testimony connect Bain with the alleged discourtesy: toward
the Abrahams in the Tyler incident.
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to contention (a) which, insofar as it concerns Veasey, has to do with
the Bonham incident referred to above in the consideration of Bain's discharge;
and the Tyler incident, likewise referred to above, in which Veasey alone was
charged with discourteous conduct. Veasey's conduct in the Bonham incident
has been disposed of above by the undersigned's finding that the record would
not support a finding that either Veasey or Bain had been discourteous to the Bon-
ham agent on November 6, and that Respondent's contention to the contrary
is without merit.
As to the Taller incident, Atwell testified on direct examination in substance,
that J. E. Boulboulle, whose duties as an agent of Respondent require him to
call on bulk station agents of Respondent's customers, after returning from his
first trip as Respondent's agent in late October or early November 1948,61 reported
to Atwell that, "Well, we had some discourteous driver in down at Tyler." When
Atwell asked, "what happened?" Boulboulle, according to Atwell, replied, "Well,
this driver 62 refused to spot his tank, and a few other items as the agent had
requested him to do, and he said he was cantankerous." According to Atwell,
Copeland teas present when Boulboulle made the alleged report ; and that he
(Atwell) then turned the matter over to Copeland.
In this same connection, Copeland testified, "Our contact man, Mr. Joe
Boulboulle, who contacts agents, brought that complaint in to me."
Q. Do you remember what he reported to you?
A. Yes sir, said that Mr. Veasey was very discourtesy (sic), that he
didn't want to back his truck up on a slab to unload, which they have a little
to unload their tanks on, that he did not want to back his truck up in the
right spot to unload.
Copeland stated that he discussed- the matter with Veasey. He testified :
Q. What did you say to Mr. Veasey at that time?
A. I checked with him on it, and asked him, and he didn't deny it, he said
they had a few words down there, and he [Abraham] had tried to get him
to sign a shortage ticket, or something like that, and it would suit him if I
would never send him down there again.
Boulboulle testified that he called on the Abrahams on October 26 and found
the senior Abraham was not in and he talked with the son, Robert, whom he
informed that he wanted to find out if the Respondent Company's service was
satisfactory ; and asked, "Are our drivers doing all they can to help you?"
Robert Abraham replied, that Mitchell (also a Respondent driver) is "a fine
driver and a good man" ; and that "Veasey is cantankerous." Boulboulle cor-
roborated the testimony of Atwell and Copeland outlined above in connection with
Boulboulle's alleged report on Veasey on or about October 26. [Emphasis sup-
plied.]
Veasey on cross-examination testified that he remembered taking a load to
"Tom" Abraham's in October 1948; that he knew Robert Abraham, but not the
older Abraham ; that Robert Abraham wanted him to sign a shortage slip to
the effect that his load was short and, since his load was not short, he refused
to do so ; that on his return to Dallas he personally reported the matter to Cope-
land ; that Copeland told him never to sign a shortage when he wasn't short ;
that subsequently, on his own initiative, he reported Abraham's claim of
61 Boulboulle testified this meeting with Atwell was held on October 26, 1948.
62 Subsequently identified as Veasey.
RAY SMITH TRANSPORT COMPANY 1079
shortage to the Texas Company, the owner of the Tyler bulk station for whom the
load was hauled', and that prior to the day he testified herein (May 12, 1949),
no supervisor of the Respondent had indicated that he "had done something
wrong in connection with the transaction with Mr. Abraham in Tyler."
If the testimony of Atwell, Copeland, and Boulboulle as summarized above be
credited it would necessitate a finding that Abraham on Boulboulle's visit on
October 26 gave the latter a detailed account of Veasey's alleged discourtesy
and "cantankerous" conduct; and that such detailed report was passed along
to Atwell and Copeland on Boulboulle's return to Dallas on or about October 26.
Robert Abraham, hereinafter called Abraham, however, testified in substance
that when Boulboulle called on him in October 1948, he asked, "How do you like
our drivers?" Abraham replied, "They are wonderful, every one of them fine,.
except one fellow" ; and when asked, "Who is that?" Abraham said, "A fellow
named Veasey." When asked, "What is the matter with him?" Abraham said,
"He is cantankerous. . . . He is just generally cantankerous and hard to get
along with."
On cross-examination Abraham testified that when Boulboulle called on him
in late October or around November 1, with reference to Veasey he (Abraham)
told Boulboulle, "One fellow that comes down here named Veasey, that is very
cantankerous, words to that effect." Abraham further testified :
Q. All you told him, you told him Mr. Veasey was cantankerous?
A. Yes.
Boulboulle testified that he kept a record of the trip when he called- upon
Abraham and other agents of Respondent's customers in which he noted agents'
complaints. He did not have the record on the day he first testified, but produced
it subsequently. It proved to be a 30-page book in which the only reference to
Veasey was a notation, as follows :
"Abraham, Tyler, Mitchell, fine driver" followed by the words "Can-
tankerous, Veasey."
Boulboulle testified that the foregoing was the only reference to Veasey in the
notebook ; and that other notes, not referring to Veasey, with respect to deliveries
of gas were spelled out in detail.
Abraham further testified that about 10 or 12 days before the hearing here-
in Boulboulle again called on him. Abraham testified :
Q. And at that time you told him in some detail about this truck.
A. He asked me when he came down there, he said he had a record of
me saying that Mr. Veasey was cantankerous. I said, "Yes, I did."
Q. Then did he ask you to back that up and be specific how he was can-
tankerous?
A. Yes, sir.
Q. That was about 10 or 12 days ago?
A. That is right.
Q. That was the first time that anybody with Ray Smith Company ever
asked you to be specific how Veasey was cantankerous?
A. Well, sir, yes, I guess that is right.
Boulboulle admitted that he had called on Abraham about 10 or 12 days before
the hearing. He testified :
Q. Did you discuss Veasey with him?
A. Yes, sir.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Well, this time you talked to Mr. Abraham, 10 or 12 days ago, down
there, did he explain to you in detail what was wrong with Mr. Veasey?
A. Not any more than he did the first time "
On the foregoing and the record the undersigned is of the opinion and finds
that prior to Boulboulle's call on Abraham some 10 or 12 days prior to the
hearing herein the Respondent had received no details of Abraham's version of
the latter's dispute with Veasey in October 1948; ^ and that the only complaint
that the Respondent could have heard was that Abraham had said Veasey was
"cantankerous." From which it necessarily follows that the undersigned cannot
credit the testimony of Atwell, Copeland, and Boulboulle, summarized above,
to the effect that Boulboulle reported to 'Atwell and Copeland on or about
November 1, 1948, Veasey "refused to spot his tank, and a few other items the
$gent .[Abraham] had requested him to do. . . .
At the hearing'Abraham testified as to his version of the dispute as did Veasey.
The most that-can be said from the record is that Abraham had a good-faith belief
that the center compartment of Veasey's tank truck was short some 13/4 gallons
of gas ; that Veasey in good faith believed that the rear compartment of his tank
had an overage of gas that more than made up the shortage , if any, in the center
compartment ; and consequently refused to sign the shortage slip demanded by
Abraham, a fact duly reported to Copeland on his return to Dallas and to the
Texas Oil Company " a few days later.
In any event it is clear that if Atwell and Copeland were in fact informed
in late October or early November that Abraham had said that Veasey was
cantankerous, which was the most they could, have learned at such time, they
made no investigation between November 1 and November 20, when they dis-
charged Veasey, nor did they'advise Veasey that he was discharged as a result
mf the Tyler incident. On the foregoing and the record the undersigned con-
,cludes and finds that Veasey's discharge was not occasioned in any degree as
:a result of the Tyler incident. Contention (a) is without merit.
As to contention (b) wherein Respondent contends that the maintenance of
Veasey's truck was unduly excessive the record discloses that Veasey's truck at
the time of his discharge was one of the three oldest trucks then in service ; and
the only testimony in any manner tending to show that Veasey had abused or
mistreated his truck was that of Millican, shbp supervisor, who, after admitting
that Dunwoodie's truck was of the same age as Veasey's and had been pulled
out of service and Dunwoodie 65 was given a new truck, testified :
Q. Mr. Dunwoodie's went so bad you sold his, and gave him a a new truck,
didn't you?
The undersigned does not credit Boulboulle 's answer above since he is convinced that
had Abraham given any details of his alleged complaint, Boulboulle, who was making his
initial trip as Respondent's agent, would have undoubtedly entered a list of such details in
.his notebook. Moreover, from Abraham's testimony, which the undersigned credits in the
main, it is clear that the only complaint he made to Boulboulle in October was that Veasey
was "cantankerous."
"The Texas Oil Company was the Respondent's customer and owned the Tyler bulk
station. It may be presumed that if Abraham felt that Veasey was not the proper type
of driver to deliver gas to the Tyler bulk station , he would have informed his own employer,
the Texas Oil Company, and the latter would have complained to Respondent. It is clear
that Veasey gave the customer his version of the Tyler . incident , and since the record con-
tains no evidence that the Texas Oil Company complained , it may be assumed that such
customer credited and adopted Veasey's version of such incident.
65 Dunwoodie was one of the "Older Heads" that accompanied Atwell on the Kerrville
,leer hunt on November 19.
RAY SMITH TRANSPORT COMPANY 1081
That is right, because we was ready to pull that one out of service.
And Veasey was able to keep his going another month or two?
That is right.
How did Veasey mistreat his truck?
Well, that engine was beginning to go out.
Well, how. did Veasey mistreat the truck?
Well, I don't know, unless he was driving it hard, or something.
You just don't know?
That is right 66
On the record as a whole the undersigned is of the opinion and finds that
the contention of Respondent that one of the reasons, for Veasey's discharge was
that Veasey's cost of maintenance of his equipment was excessive is without
merit and was advanced as an afterthought in an effort to justify such discharge.
Contention (b) is without merit.
(3) Conclusions as to Veasey's discharge
As is found hereinabove the "reasons" advanced by Respondent for Veasey's
discharge are each without merit. The facts found and conclusions reached
above in connection with Bain's discharge are, with exception of the Cleburne
incident, applicable to Veasey's case and are hereby incorporated by reference
in Veasey's case. On the basis of the foregoing facts and upon the entire record,
the undersigned finds that the Respondent discriminatorily discharged J. R.
Veasey on November 20, 1948, in violation of Section 8 (a) (1) and (3) of the Act.
c. E. 0. Alexander
(1) Events leading up to discharge
Alexander was employed by Respondent on September 12, 1948, as a tank truck
driver and was discharged on November 20, 1948, at the same time Veasey was
discharged under the circumstances detailed below. He operated a Dodge truck
with a semitrailer tank ; and did most of his hauling in East Texas in such
.places as Tyler, Ennis, Longview, Carthage, Jefferson, and Marshall, all in the
.State of Texas. A short time after he began working, Copeland informed him that
he had received a Markel insurance report which stated that he had driven his
truck at 50 miles per hour in a 45-mile zone. Copeland told Alexander to hold
his speed down to 45 miles an hour which he agreed to do. The foregoing is
the only instance in which he had received any reprimand or anything in the
nature of a reprimand. At the time he and Veasey were discharged, Copeland
informed them that he could recommend them to any company that they wanted
to go to work for and stated they "were good drivers" and he "hated to lose"
them. Alexander signed an application for membership in the Union about' 2
weeks before his discharge and gave application blanks to other truck drivers
when they were loading or unloading wherever he would meet them. A short
time before his discharge, Copeland asked Alexander what he knew about the
Union and the latter replied that he did not know anything about it, when as a
matter of fact he had already signed an application blank in the Union.°7
"As stated hereinbefore, the undersigned bases no finding on Millican's uncorroborated
testimony when given as expert or opinion evidence.
67 Copeland's categorical denial in this connection is not credited by the undersigned.
,Copeland's credibility as a witness is discussed hereinabove in connection with the discharge.
,of Bain.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the day of Alexander's discharge, he and Veasey reported to the terminal
together at about 4 o'clock in the morning. As Alexander started inside to get
gasoline, he was stopped by Copeland. Alexander testified :
Mr. Copeland said he had bad news for us. And we asked him what it
was, and he said he had gotten a call from the deer hunt to let me go that
day, to pay us off in full, and we asked him what it was about, and he said
that the reason that they gave was unsatisfactory work. Of course, we
wanted to know what was so unsatisfactory about it, and finally in the
course of the conversation he said that it wasn't a true fact but he thought
it might be the Union.
After the discharge Alexander and Veasey continued their conversation with
Copeland in which the discharges were further discussed. Following such
conversation, Copeland volunteered to let them use his car for the purpose of
taking their "stuff" home and getting Veasey's own car. The two used Cope-
land's car and then returned bringing Veasey's car for their use.
On cross-examination, Alexander testified :
Q. All right, what was it that was said when you first got there?
A. Johnny said he had bad news for us, and we asked him what it was, and
he said he got a call from the deer hunt that we had been discharged, to
be paid off immediately, and gave us a list of names there had been wrote
down with a red pencil, and we found out why, and asked him why, and he
told us the reason they had gave him (sic) was unsatisfactory work, but
after we talked with him awhile the conversation went on and he said he
thought it was because of the Union.
A day or two. following his discharge, Alexander asked Copeland what the
chances were for him to return to work. Copeland said, "it was over his head."
(2) Respondent's contentions as to the discharge
Respondent's contention in Alexander's case is best told by Copeland's testi-
mony. He testified :
Q. Prior to the time that you let Mr. Alexander go, had you had any
conversation with him?
A. I did.
Q. Had you had any conversation with him with respect to continuing
with the Ray Smith Transport Company and that job there?
A. I did.
Q. What did Mr. Alexander say to you?
A. He and I early one morning stepped around to the cafe in my car for a
cup of coffee and he said to me, he says, Johnny, "I figure on quitting you
but," he says, "I'm going to work a few days longer."
Q. About when did he say that to you, Mr. Copeland?
A. That was a short time before I let him go.
Q. Did he make any reference to what job he was going to?
A. No, he did not.
Q. Did you say anything further to him?
as Copeland's categorical denial of his testimony is not credited by the undersigned.
See discussion of Copeland's credibility elsewhere herein.
RAY SMITH TRANSPORT COMPANY 1083
A. Well, I told him I didn't blame him, if he wasn't satisfied with his
job, I wouldn't blame him for getting another one. I don't hold that against
no driver if he can better himself.
Q. Now, Mr. Copeland, why did Mr. Alexander go?
A. After he made his statement to me, I didn't figure that he was a de
pendable man, and I let him go on that basis.
On cross-examination :
Q. Wasn't it your testimony, then, that Mr. Alexander was in your car,
and told you he had been thinking of leaving town but decided to stay a few
days more.
A. That is right.
Q. That is right?
A. Yes, Sir.
Q. And immediately after that, you stated to Alexander, did you not,
that it was all right with you if a driver wanted to better himself.
A. I did. It is all right with me if any driver wants to better himself.
I don't hold that against any driver.
Q. You don't hold it against him, at all?
A. No, Sir.
Q. Didn't you testify on direct examination that was the reason you
fired Mr. Alexander?
A. That is the reason, because I didn't figure him to be a dependable man,
when he was figuring on leaving me.
Alexander testified that he had no conversation with Copeland wherein he told
Copeland that he was going to take a job with another company. The under-
signed credits Alexander's testimony in this regard and finds that he made no
such statement to Copeland. Significantly neither Copeland nor any other
Respondent witness testified that Alexander was, prior to his discharge, informed
that he was being discharged because he planned to seek employment elsewhere 89
(3) Conclusions as to Alexander's discharge
From the foregoing and the record it is clear that Alexander joined the Union
some 2 weeks prior to his discharge ; that he was discharged on November 20
at the same time Veasey was fired ; that Copeland had his name on the list of
those slated for discharge on that date ; and that Copeland did not at the hearing
herein advance the same reason for such discharge as he had assigned on Novem-
ber 20 when he discharged Alexander and Veasey simultaneously. While Cope-
land testified that he selected Alexander for discharge, the undersigned has found
above in connection with Bain's discharge that Copeland made no selections
among the seven drivers herein concerned for discharges, but received such
instructions from Respondent's officials. The record indicates that. Alexander's
work record was not subject to attack, otherwise Respondent would have
advanced some failure on his part as the reason for discharge, rather than the
one it sought to advance retroactively, that an employee who planned to seek
a better job, thereby became undependable.
69 The Board has held in effect that where an employee indicated to his employer an
intention to quit his job at an indefinite date in the near future and was discharged before
tendering his resignation , such discharge may not be justified because of such announced
intention , where the evidence discloses that the discharge was in fact because of the
employee ' s union activity . See Spencer Auto Electric , Inc., 73 NLRB 1416.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the foregoing and the entire record the undersigned concludes
and finds that the Respondent discriminatorily discharged E. O. Alexander on
November 20, 194S, in violation of Section 8 (a) (1) and (3) of the Act.
-d. J. B. Worley
(1) Events leading up to the discharge
Worley was employed by the Respondent on or about April 15, 1948 , as a tank
truck driver and worked until November 20, 1948, when he was discharged under
conditions set forth below. Among others, Worley hauled petroleum products for
the Texas Company, Sinclair Refining Company , Magnolia Petroleum Company,.
Humble Oil and Refining Company , Gulf Oil Company , and Gladewater Refinery.
Worley signed an application and authorization blank with Local No. 745 in.
or about the fore part of November.40
On the date of his discharge , Worley was working on the "City Haul" in
Dallas, which assignment did not require hire to report to work until 6 a. M..
When he reported to work on November 20, Copeland met him and took him,
into the main office where he informed him that he had some bad news for him
and that he was fired. Copeland stated in substance that he had got such
instructions from "Mr. Bob Atwell ." Worley then asked Copeland if Atwell had.
authority to give such instructions. Copeland then said that President Smith
was standing by Atwell' s side when Atwell telephoned Copeland . In this connec-
tion , Worley testified:
Q. (By Air. JEnxiNs .) Then what happened Mr. Worley?
A. I.told him that I hated to lose my job and I had tried to be a model.
employee , Christmas was corning on and I had a big family , 6 children, 5 in.
school, and it was throwing me in a cramp , and he said , "I hate it as bad as
you do ," and he says , "If there is anything I can do for you I will do so, and
a recommendation , I will give you a recommendation ," and I asked him did he'
know the reason that they fired me, and he said Mr . Bob Atwell gave him the
reason that they let me go for the simple reason that my work was not
satisfactory and I asked him then if it was possible if it could be considered.
that I had taken part in the Union ." He said, "I wouldn ' t be surprised.""
Q. Now, Mr. Worley , while Mr. Copeland was talking to you, did hey
have a piece of paper with a list of names written on it?
A. Yes, sir.
Q. Did he show you that piece of paper?
A. Yes, sir.
Q. Did he tell you what it was?
A. Yes, sir.
Q. What was it?
A. He told me that it was a list of the boys that Mr. Bob Atwell told him to
let go.
Q. Was Mr. Needham 's name on the list?
A. Yes, sir.
Q. Can you tell me the other names that were on that?
70 While the signed application and authorization above referred to is undated, the.
application discloses that he had been working for Respondent Company 67/ months at the
time he signed such application . His undisputed and credited testimony discloses that he.
went to work for Respondent, as found above , on or about April 15, 1948.
RAY SMITH TRANSPORT COMPANY 1085
A. Mr. Bain, Mr. Needham, Mr. Veasey, Mr. Straight, Alexander and
myself."
During this conversation with Worley, Copeland stated. "Your work is satis-
factory with me and you have a mighty good record, and I hate to see you
go." Copeland further stated that "they" had gone over his head to let the
"6 of us" go and added "wintertime is coming on, wet and slick roads. .. .
I don't know what I'm going to do, they have left me a bunch of pin heads for
drivers." 72. .
(2) Respondent's contentions as to Worley's discharge
Respondent contends that Worley was discharged because he was "rough
on his equipment." In this connection, Copeland testified :
Q. Who made the decision to discharge Air. J. B. Worley?
A. I made it myself.
Q. For what reason did you discharge Mr. Worley?
A. For being rough on his equipment, and then I had had some reports
of him speeding, and then also had . . . there was a lady called in on
him running her off the road, and he was always bringing me in stories
about running up the filling station drives and getting in close calls, what
a close call he. had. I mentioned it to him one morning. "Worley, I wish
you wouldn't bring them to me, because you chill me every time you bring
me one of them."
Q. Had you warned Air. Worley about slowing down and taking care of
his equipment?
A. I had.
In addition to the foregoing testimony of Copeland, Millican, shop superin-
tendent, testified that in his opinion the maintenance record disclosed high
maintenance costs on two trucks that Worley had operated. Worley was
employed in April 1948, and operated truck No. 252, a 1945 International K. S-7
until September, when he was assigned truck No. 480, a Dodge truck which
he operated until his discharge on November 20.
Respondent introduced two repair and maintenance records covering the two
trucks operated by Worley-such records disclosed as to truck No. 252, as.
follows :
Labor costs Parts costs
May--------------------------------------- $30.50 $36.931
June------ -------------------------------- 11.00 17.97,'
July--------------------------------------- 555.65 38.911
August------------------------------------ 26. 00
73 244. 73:
September--------------------------------- 53.00 59.32
" Copeland denied that he told Worley that he had a list of "the boys" that Atwell told
him to let go. In connection with Bain 's discharge , however, Copeland testified
Q. Did you tell Bain that five or six more got the same thing he did?
A. I might have told him I was going to let four or five go. . . .
72 The above findings are based upon Worley's credited testimony. Worley impressed the
undersigned as a thoroughly honest witness who sought to tell only the truth. without
exaggerating facts favorable to his interests or minimizing those that might be unfavorable
to such interests. It follows that the undersigned does not credit Copeland's denials or
his version of the facts testified to by Worley when such version is in conflict with Worley's
testimony.
"The maintenance record discloses that $213.43 of this amount was for replacement of
axle shaft and for repair of air leak in line.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to truck No. 480 , as follows : Labor costs Parts costs
September----------------------------------- $41.50 $102.15
October ------------------------------------- 6. 00 2.20
With reference to August item on truck No. 252, amounting to $244.73, no
Respondent witness contended that Worley personally made such repairs.neces-
sary.7' Millican merely gave it as his opinion that the maintenance record was
high on both truck No. 252 and 480. On cross-examination Millican testified
that the charges placed against truck No. 480, for September totaling $143.65,
were not properly chargeable against Worley.
Millican testified :
Q. So it is not proper to charge Mr. Worley with any of the $41.50 plus
a hundred and two dollars and fifteen cents which you told your counsel
was excessive, is it?
A. That is right.
Q. As a matter of fact, Mr. Worley didn't have anything chargeable in
September, did he?
A. Not if this is what it is, [items charged] and that is what it is sup-
posed to be.
Q. Now, is there anything on that card that is before you or anything in
your mind, that you can tell this Examiner that Mr. Worley was wrong
with respect to taking care of trucks?
A. No sir.
* * * * * *
Q. Did you ever make a report on a Mr. Worley to Mr. Copeland?
A. No sir.
(3) Conclusion as to Worley's discharge
From the foregoing and the record it appears and the undersigned finds that
Worley was a capable and efficient truck driver and was so regarded by Cope-
land ; that following Bond's discharge in early November allegedly for a minor
infraction of highway speed regulations, some seven of Respondent's drivers,
including Worley, undertook to organize the drivers into the Union; that on
or about November 18 Bain informed Roy Hillin, one of the "Older Heads"
in the Respondent's employ, of the names of six of the drivers who had joined
in the movement for such organization ; that on November 18 Hillin and three
other "Older Heads" accompanied Vice-President Atwell to Kerrville, Texas,
on a deer hunt, where President Smith had gone on or about November 15; on
Saturday November 20, 1948, Copeland informed Bain, Veasey, Alexander,
Straight, and Worley, each, in substance, that he had bad news for them in that
he had received telephone calls from Atwell and Smith from the Kerrville deer
hunt that each of the above-named had been discharged and that Respondent's
officials had instructed him to inform them that they were discharged because
their work was unsatisfactory ; that Needham's name was on the list of those
to be discharged on November 20, but was not informed of his discharge until
November 22; and that Pickard, whose name was not on the November 20 list,
was not discharged until November 26, at which time Copeland informed him
that he had a call from Smith, who had returned to the Kerrville deer hunt,
14 In any event , and assuming Worley had been in anywise responsible for this repair
made on August 21, it is unlikely that such responsibility would have occasioned Worley's
summary discharge without warning some 3 months later.
RAY SMITH TRANSPORT COMPANY 1087
that he too had been discharged for the same reasons as the first six had, namely,
"unsatisfactory work." It further appears that at the time of such discharges
Respondent refused to assign any specific reason as the cause of the discharges,
(except in Needham's case discussed below). Notwithstanding that, all dis-
chargees requested that it do so, since the Respondent was of the opinion that
the Board was without jurisdiction to hear and decide complaints against it.
Following the filing of charges herein, the Respondent, apparently on the
assumption that the Board might be able to legally assert jurisdiction, sought
to discover retroactively "good reasons" that might be held to justify the
discharges.
In Worley's case this was difficult but Respondent decided to rely on the
charge that his maintenance-of-equipment costs were unduly excessive 7° It is
clear from the foregoing and the record that such contention,on Respondent's
part has not been sustained and is without merit. It is so found. On the basis
of the foregoing facts and upon the entire record, the undersigned concludes
and finds that the Respondent discriminatorily discharged J. B. Worley on
November 20, 1948, in violation of Section 8 (a). (1) and (3) of the Act.
e. Herbert Stra2,ht 78
(1) Events leading up to the discharge
Straight was hired by Copeland' on July 15, 1948. In this connection Straight
testified :
Q. At the time he hired you, would you tell us what sort of a conversation
took place?
A. Well, I had been pulling a freight truck here out of town for the past
4 or 5 years, I had been dickering whether to go over or not, so my brother
went over and there went to work, so I did too. I told Johnny [Copeland],
I said, "I don't imagine I can work over here." He said, "Why?" I said,
"Well, I have got a Union withdrawal card." I knew that they didn't go
for it. He said, "that is okay as long as it is a withdrawal card," so he
hired me, knowing that, and I went to work and didn't think any more
about it 47
Straight signed the union application for membership card on or about No-
vember 15 or 16, ". . . it was the week previous to the laying off." Straight was
75 Worley of course was not informed by the Respondent of its decision to rely on such
charge, and first learned of it at the hearing herein.
76 Frequently in the record referred to as Strait. The charge and complaint however
referred to him as Herbert Straight.
71 Copeland's categorical denial that he stated, "That is okay as long as it is a with-
drawal card," is not credited by the undersigned. The undersigned does not find that the
making of such statement by Copeland at the time and under the circumstances it was made
constitutes a violation of Section 8 (a) (1) of the Act. The record discloses that Cope-
land had been promoted from dispatcher to a position of operations manager during June
1948 and thus had but 6 weeks' or less experience in his new position in which he exercised
the authority of hiring and firing. On the whole the undersigned cannot say that by his
statement Copeland meant or intended to convey the idea that the Respondent was
antiunion.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shown,one of the insurance reports with reference to his driving which stated
"it was a driving in order."7'
Prior to his discharge on November 20, Straight had been hauling petroleum
products in east Texas. He had been sent to east Texas on Tuesday, November
16, and was requested by Copeland to remain in east Texas for a time and haul
products from Arp to Carthage. On Friday evening, November 19, he drove back
to Dallas where he arrived about 11 p. m. He drove to his home in his truck
and reported at Respondent's terminal about 4 o'clock on Saturday, November
20 where he started "gasing up, airing my tires, and checking my tires," and
then went to get gas tickets to fill his tanks.. When he did.so, Copeland said,
'"Straight come here a minute." When Straight joined Copeland, the latter had
.a slip in his hand and stated, "I just got word from Kerrville that your service
wasn't needed any more." Straight then said, "What is the score?" to which
'Copeland replied, "Well,-I have a telephone call from Mr. Smith at Kerrville
to let you go, your service wasn't needed." Copeland then showed Straight a
"little paper" and said, "Don't feel bad over it,-there are 5 or 6 more." Cope- .
land permitted Straight -to see the list of names of those slated for discharge.
With further reference to this meeting, Straight testified :
Q. Did you ask Mr. Copeland what was wrong with your work?
A. Yes sir, I did.
Q. What did he say?
A. He said it wasn't (sic) a thing wrong with my work that he knew of,
that he had been perfectly satisfied and it was out of his hands, that lie
didn't have nothing to do with it and didn't want [me] to think harsh of
him whatsoever, and he said if there was anything that he could do helping
ais secure another job he would be glad to do it. He would give us a recom-
mendation anywhere, on our driving. He told me the same, he said, "I will
give you a recommendation just anywhere you might apply." 79
Straight then left the office and returned about 10 o'clock on the same morning at
which time Copeland had stated the checks would be ready. When he arrived,
he found that the checks were not ready and also found that Worley was also
present. Thereafter Worley and Straight went into the repair shop and talked to
Millican and asked Millican, "What about it Albert, can you do anything?" Mil-
lican replied, "No there is nothing I can do about it now. You have done been
fixed"
While, as is set forth below, Respondent contended that both Straight and
Worley failed to keep their equipment up, Millican made no mention of such
contention on,the occasion of Straight's and Worley's visit on November 20.
Prior to going to work for the Respondent, 'Straight had had occasion to drive
motor trucks to Port Arthur, Texas. After his employment by Respondent and
,on occasions when it was necessary for trips to be made to Port Arthur by
78 On direct examination, Straight was asked what was on the insurance report and he
answered , "well, it was a reprimand it was riding in order. " He subsequently stated that
what he meant to say was that it was a compliment. Since the Respondent would have
such report in its possession, the undersigned assumes that it would have been introduced
in evidenceif'it were not in fact complimentary.
76 Copeland admitted that he discharged Straight at about 4 o'clock in the morning of
November 20 but denied, that he said, "I just got word from Kerrville, your services are un-
satisfactory," of that he stated, "I had a telephone call from Air. 'Smith to let you go."
-Copeland ' s denial is not credited by the undersigned. He finds that Copeland made his
,statements .to.Straight.substantially as set forth above.
RAY -SMITH TRANSPORT COMPANY 1089
Respondent's trucks, Copeland assigned Straight to such run and said, with the
statement, "that he thought I could make the run and pull it without having
any trouble, that be bad had more trouble on that run than any other run he
ever had." 80
(2) Respondent's contentions as to the discharge
Respondent contended, as testified to by Copeland, that Straight was discharged
because (a) he had a Markel report that Straight was driving 54 miles an
hour and passed a truck on the wrong side; (b) he had driven from Hearne
to Longview in "approximately 3% of an hour"; and (c) he "was abusing his
equipment."
As to contention (a), while Copeland testified that he had a Markel report on
Straight, no such report was produced or offered in evidence at the hearing.
Straight's credible testimony indicates that a Markel man was on the highway
with Straight and further indicates why the Markel man or his report were not
produced at the hearing. Straight testified :
Q. Do you remember passing the Holsum Bread Company's truck on'the
wrong side out at Buckner's Orphans Home several weeks before you got
out?
A. I do. I passed him on the wrong side.
Q. You did pass him on the wrong side?
A. He pulled in on the left hand side of the road, and I was running on the
right hand lane on the right hand side of the road. He pulled in right to-
wards me, see but he never did come no further than the center of the road,
which was a three-lane-road, and there were two boys on it, a boy on the
right hand side motioned me on up there, and I pulled up there and there
was a Markel Insurance Man behind me, and also a State Highway Patrol
right in front of me and he did the same thing I did.
Q. It was a Markel man?
A. It was a Markel man I know it. He made the same drive I did. He
followed me all the way from Terrell. It was a proper drive to make on the
State Highway.
Q. You had a Markel man right behind you?
A. Absolutely, yes.
Inasmuch as Respondent did not produce the alleged Markel report the under-
signed credits Straight's testimony quoted next above and finds contention (a)
to be without merit.
As to contention (b), Copeland testified that he had a report on Straight
from east Texas to the effect that he had driven between the two towns men-
tioned, namely, Longview and Hearne, a distance of approximately 180 miles
in 3% hours. The record contains no testimony as to who made the report;
whether it was a written or an oral report or as to how the alleged informant
acquired knowledge of such drive, if in fact such trip was made. When Cope-
land was asked by his counsel, "How far is Hearne. to Longview," Copeland
replied, "I'd say right at 180 miles, rough-guessing it." No finding that Straight
made such a drive in the "approximate" time alleged can be made on the testi-
mony offered. Contention (b) is without merit.
80 The Port Arthur run was not a regular one. Some weeks there might be a load or two
and on the following week there would be none.
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to contention (c), Millican testified that he had never made any report
to Copeland with reference to Straight's equipment. He did, however, testify
at the hearing to the effect that Straight's maintenance costs during August
were average, and that they started climbing in September ; and that in his
opinion the September, October, and November totals were high for a new
truck.81 The maintenance records in evidence, pertaining to Straight's truck,
disclose as follows :
Labor costs Parts
July------------------------------------------ $9.00 $4.00
August--------------------------------------- 9.50 5.00
September------------------------------------ 31.00 11.00
October--------------------------------------- 39.50 16.79
November ------------------------------------ 20. 00 29.95
The mileage shown on such exhibits indicates that Straight drove this truck
approximately 34,000 miles in the 4 months he was employed. An average
monthly cost of $27.25 for labor, and an average monthly cost of $16.83 for
new parts do not, in the opinion of the undersigned, indicate an abuse of
equipment by Straight. Contention (c) is without merit.
(3) Conclusions as to Straight's discharge
Straight's discharge and the circumstances surrounding it were a counterpart
of Worley's discharge. All that the undersigned has found and related- in
connection with Worley's discharge is equally applicable here, and is hereby
incorporated by reference thereto. Straight joined in the union activities;
the Respondent learned of such action and discharged him along with all other
drivers then engaged in such activities ; the discharge was without warning,
and no specified reason was given when asked for. Straight was to learn
for the first time at the hearing that he was allegedly discharged for being
,.rough on his equipment," a contention the Respondent failed to support by
any credible evidence at such hearing.
On the basis of the foregoing facts and upon the entire record, the undersigned
finds that the Respondent discriminatorily discharged Herbert Straight on
November 20, 194S, in violation of Section 8 (a) (1) and (3) of the Act.
f. C. J. Needham, Jr.
(1) Events leading up to the discharge
Needham was employed by the Respondent on April 22, 1948, and was dis-
charged on November 22, 1948, under the circumstances, detailed below. As a
tank truck driver, Needham operated a semitrailer. Among the major oil com-
panies for whom he hauled petroleum products were the Continental Oil Com-
pany, Texas Company, Magnolia Petroleum Company, Gulf Oil Corporation,
McMurry Refinery Company, and Humble Oil and Refining Company.
During his' employment, Needham was not reprimanded by any company
supervisor and on the contrary was complimented on occasions. During the
81 As found hereinhefore the undersigned can base no findings on Millican 's opinion or
"expert" testimony , since he did not demonstrate , in the opinion of the undersigned, that
lie was sufficiently qualified to give an expert opinion on the mechanics and operations of
the modern transport trucks.
RAY SMITH TRANSPORT COMPANY 1091
summer of 1948, however , he was shown one Markel Insurance Report which:.
stated that he was making 52 miles an hour on the highway. His truck was.
known as an International tractor type truck K-8, 1946 year and model and was.
carried on Respondent's records as truck No. 260, and was among the oldest, if'
not the oldest, truck in operation by the Respondent 82
At the time Needham went to work, one Everhart was operation manager, and!
some 2 or 3 weeks after Needham had started to work. Everhart told Needham
that the truck was in bad condition before Needham took it over, and that the.
valves had burned out prior to that time, and that "they" had not expected.
Needham to drive the truck as long as he did.
During the time from April to November 1948, Needham had the truck in the.
shop some. three or four times as a result of- a- "valve job," -during which time
Needham discussed the matter with Business Manager Leisering and attempted,
without success, to contact Smith for the purpose of discussing the valves in his.
truck, and did contact Atwell.83
On or about November 15 or 16, Needham's truck was in the shop for attention
as he was of the opinion that one or more of the valves were "missing." On
November 22, at about 2 a. m., Needham reported for work and Copeland informed
him that he wanted to talk to him and the two went into the back office. Cope-
land said he had a little trouble lie wanted to thrash out with Needham, in that,
Needham had had trouble with his truck. Needham stated that he thought that
matter had been cleared up after his talk with Leisering and Atwell. Copeland
said that he thought so too, but that he had word to let Needham go on account of
"these-valves." Needham joined the Union some 10 days to -2-weeks before his.
discharge. Needham testified:
Q. Now, at the time you were discharged, did Mr. Johnny Copeland state
that in his opinion that it was your fault about these valves?
A. No, sir.
Q. What did he say about that?
A. He said he was sorry about it, that there was nothing he could do
about it.
82 Credited testimony in the record indicates that the life of a tank truck operated by the.
Respondent averages about 150,000 miles; and drivers are expected to drive such truck
about 8,000 miles per month.
83 Leisering was not called as a witness , and in this connection Atwell testified :
Q. Mr. Atwell , Mr. Needham testified that he had had some discussions with some
body up there about previous valve jobs and valves that he burned out on his truck.
Now, did you have any discussion with him yourself, Mr. Atwell?
A. I did.
Q. About when was that, do you remember?
A. Mr. Seay, I can't establish the date, but I do remember I' talked to Needham,.
but I will swear, I can't establish the date or the time.
Q. Did you or not tell Needham that it was not his fault on burning out the valves?
A. No, I didn't tell Needham that it wasn't his fault because I am certainly not one
to judge.
Q. What was the discussion that you had with Needham on it, how (lid it come up?
A. Needham cane in and talked to me, and said he wanted to talk to me about these.
valves, he was concerned about burning out these valves. I told Needham, to the best
of niy recollection "Well, Needham, you are going to talk to Johnny [Copeland] and
Albert [Millican] about that, because I don't have anything to do with that. I he-
lieve that is just, to the best of my recollection, our conversation.
Q. Did Needham say why lie happened to be coming in to see you?
A. I don't remember, Mr. Seay, whether I [lie] did or not. I saw him in the hall
there.
889227-51-vol. 89-70
:1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Sorry about what?
A. The fact that I was being fired ' over the valves, because it had been
thrashed out previous to that.
(2) Respondent's contentions as to the discharge
Respondent contends, in substance, that Needham was discharged because, (a)
he had too many "valve jobs" done on his truck ; and (2) excessive maintenance
-costs on his equipment.
As to contention (a), with reference to Needham's discharge, Copeland testified:
Q. When did you let him go?
A. I believe, I'm not sure, I believe it was on November 22, 1948.
Q. Now, did you or not make the decision.to let Mr. Needham go?
A. I did.
Q. Why did you discharge Mr. Needham, Mr. Copeland?
A. Over his valve jobs and his equipment.
Q. Had you previously warned Mr. Needham about those valve jobs and
his equipment?
A. I had.
Q. Had you, prior to letting him go, received any complaints on the number
of valve jobs Mr. Needham had had on his truck?
A. I had. Mr. Smith had jumped me about those valve jobs.4
Q. Had Mr. Millican or not said anything to you?
A. He had. He had complained to me on the valve jobs.
'The record discloses that Needham's truck, an International tractor type K-8
which pulled a tandem trailer, was a rebuilt job as to its engine; and had been
purchased in 1946. It was one of the three or four oldest trucks operated by
Respondent when Needham was hired. As found above, Copeland's predecessor,
.one Everhart, informed Needham, after the latter had operated the truck some
3 weeks, that the truck was in bad condition when it was assigned to 'Needham ;
had had prior "valve jobs"; and that "they" had not expected Needham to
operate the truck for the length of time he had then operated it. Needham him-
self was concerned by the fact that the engine had a tendency to burn out the
valves, and sought to discuss the matter with Respondent's officials, and did so,
after which lie understood that Respondent would not seek to hold him responsible
for this defective truck. In-this connection Needham testified:
Q. All right, can you tell me exactly what happened on the day you were
discharged?
A. Yes sir, I reported for work at 2 a. m., and Mr. Copeland said he wanted
to talk to me, and we went in to the back office, and he said he had a little
trouble to thrash out. with me, and I asked him what about, and he said
about the valves, that I had had trouble within my truck, and I said that
it all had been cleared up, and he said he did too, but he had had word to
let me go on account of these valves.
Q. Did he say anything else to you at the time?
A. Well, we had quite a discussion over the fact that I had all ready seen
the proper people about these valves, and thought there would be nothing
said, nothing more said about it.
84 Smith was not questioned about the "valve jobs," and gave no testimony concerning
them at the hearing.
RAY SMITH TRANSPORT COMPANY 1093
Q. Was there any mention made in that conversation about a telephone
,call from Kerrville?
A. If I remember distinctly, he said Mr. Atwell, he got word from Mr.
Atwell, He didn't say how. He just said he had word to let me go on that
:account.
Q. Why was he to let you go?
A. On account of burning the valves on that particular truck.
Q. Did you have any further conversation with him then?
A. Yes, sir. I don't distinctly remember what it was all about, but it was
.all over the valves.
Q. What did you say to him and what did he say to you?
A. Well, I told him I was pretty hot about it, because I had went to the
trouble to see all these people [management] about the valves, and then
Mr. Leisering n made the remark did I think I would be fired over burning
these valves without having a talk with all those people there, that they
had went into it and decided it wasn't my fault, then I come out there in
'2 o'clock in the morning to go to work and they suddenly decided to fire
me. I talked to Mr. Atwell about 2 days previous to being fired, and there
was nothing said about it.
In connection with Needham' s truck, Millican testified :
Q. Is that truck still in operation?
A. No sir.
Q. What did you do with it?
A. It was sold.
Q. Why?
A. We were having all the older stuff replaced with new equipment. [Ital-
ics supplied.]
Q. What was an old truck then?
A. 46 model '
From the foregoing and the record it appears that Needham's truck, with its
"rebuilt engine" had merely worn out from ordinary wear and tear; and that
Respondent seeks to justify Needham's discharge by holding him responsible
for a truck that was, to the knowledge of Copeland's predecessor, at least, a
defective one. It is so found. Contention ( a) is without merit.
As to contention (b), which is based upon alleged excessive costs of main-
tenance of equipment, Needham's maintenance records disclose as follows :
Labor Parts
May ST-------------------------------------- $23.00 $19.09
June--------------------------------------- 28.00 328. 50
July --------------------------------------- 22.50 49.76
August ------------------------------------- 31.50 37.83
September---------------------------------- 28.50 8.70
October------------------------------------- 27.00 77.42
November to the 18th----------------------- 25.00 8.70
85 Leisering was not called as a witness , nor was he shown to have been unavailable.
80 The record shows that on an average , a truck used by Respondent will operate for
about 150, 000 miles , and that such trucks are driven about 8 , 000 miles per month. Thus
it may be said that the average life of such trucks is approximately 18 months.
87 Needham started to work on April 22, 1948, and the maintenance record for May
Includes an item dated April 23.
81 This amount includes costs of rebuilt engine referred to above.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition to the above items it appears that Respondent seeks to charge
Needham with responsibility for the necessity of having the truck painted and
lettered , since it shows an item of $45 for painting and an item of $10 for
letters.
While the record does disclose that four valve jobs were done on Needham's
truck between the time he went to work on April 22 and his discharge . 7 months
later on November 22, it does not disclose that Needham was responsible for these
four valve jobs. On the contrary the.credible evidence on the record indicates
that Needham ' s truck had worn out ; that the rebuilt engine may not have been
properly rebuilt or properly installed with the .result that it had an " individual"
tendency to burn out the valves . The record will not support a finding that
Needham 's, maintenance costs were .,unduly excessive under the conditions and
circumstances found above . Contention ( b) is without merit.
(3) Conclusion as to Needham 's discharge
The foregoing and the record disclose that when Needham went to work
for Respondent he was assigned one of the oldest trucks in Respondent 's service ;
that such truck was defective when Needham took it over , in that it needed fre-
quent valve jobs done thereon; and that the rebuilt engine installed in such
truck during June did not result in an improvement to such truck insofar as
burning out of the valves was concerned.
The record further discloses that Needham joined in union activities with
the employees„ whose discharges have been considered above and for the same
reasons that the above referred discharged drivers did ; that Needham's name
was, on November 20,9° included on the list of drivers whom Respondent 's officials
had instructed Copeland to inform that they were discharged .;. and but for the
fact that Needham was named by Bain in his November 18 conversation with
Hillin as one of the union adherents , Needham would not have been discharged.
On the basis of the foregoing facts and upon the entire record, the undersigned
finds that the Respondent discriminatorily discharged C. J. Needham , Jr., on
November 22, 1948, in violation of' Section 8 (a) (1) and (3 ) of the Act.
g. Carl Pickard
(1) Events leading up to the discharge
Pickard was , employed by the Respondent on or about April 17, 1948 , and was
discharged under the circumstances detailed below , on November 26, 1948. He
operated a tank truck known as a "6-wheeler " and during his employment, he
hauled to and from such points in Texas as Longview , Marshall, Carter, Arp,
Wichita Falls , Temple, Waco, Hearne , and other places. He signed an applica-
tion and authorization blank for Local No. 745 some 3 weeks prior to his dis-
charge on November 26.'0
S9 Insofar as the record discloses Needham, whose truck was in the shop on November
20, did not report for Work on that day. He did report on Monday, November 22, and
was then promptly discharged.
°o The signed application in evidence is undated but states in answer to how long
he had been employed with the Respondent , as 7 months , thus indicating that the
application was signed on or about November 17. Pickard 's name was not mentioned
by Bain to Hilliri, when he informed the latter on November 1S of the names of those
drivers who had undertaken to organize Respondent ' s drivers.
RAY SMITH TRA'NSPO'RT COMPANY 1095
He reported for work on Friday, November 26, about 2 a. in. He then pulled
his truck up on the driveway, put air in his tires, got his gas ticket and "gassed"
his truck. He then went into the office where he met Copeland who asked him
;to,answer the phone while he went to get a cup of coffee.
While Copeland was after his coffee a long-distance call came in for Copeland.
Pickard advised the telephone operator that Copeland would be back in 10
minutes or so. Pickard then went outside and talked with other drivers for
some time and then went inside and asked Copeland for his orders. The latter
said, "Wait just a minute, I want to talk to you." But it was about an hour
later before Copeland finally invited Pickard into the main office where he
said , "I'm sorry, but I am going to have to let you go." When Pickard asked,
"Why?", Copeland replied that he had orders from Kerrville that he would
have to let Pickard go, and said, "I hate to tell you this, but it is my duty. Your
work is unsatisfactory, they said your work is unsatisfactory, and we will have
to let you go." In this connection Pickard credibly testified :
Q. Was anything said about the Union in that conversation?
A. Yes.
Q. How did that come up?
A. Well, I asked Johnny, and I said, "Johnny, why are they letting me
go?" He said, "I don't know, you will have to figure that out." I asked
him, I talked to him a little bit and I said, "Johnny, would it be over the
Union," and he said "Well, it might be." He said he didn't know, and he
said finally if I had kept my nose out of the Union business I wouldn't have
got fired like the other boys did .^
Copeland admitted on cross-examination that Pickard had been used as an
instructor of a new driver on at least one occasion. Copeland testified :
Q. Mr. Pickard had been used as instructor of new drivers, had he not?
A. Instructor? I think probably one driver was sent out with him. I
think I probably sent one driver out with him.
Q. More than one, didn't you Mr. Copeland?
A. No. I don't recall over one. I do recall one, though.
Q. Was Pickard already working there when you became foreman?
A. He was.
(2) Respondent's contentions as to the discharge
The Respondent contends, as testified to by Copeland, that Pickard was dis-
charged because (a) he would not work ; (b) that Pickard told Copeland that
he would have to stay off the road for 2 or 3 days, since he was having glasses
made; and (c) because of complaints as to Pickard's personal "appearance."
As to contentions (a) and (b), in which connection Copeland testified:
Q. Did you make the decision to let Pickard go?
A. I did.
Q. Now, Mr. Copeland, will you please explain to the Examiner the cir-
cumstances of your letting Mr. Pickard go, and the reason you discharged
Mr. Pickard.
A. I discharged Mr. Pickard because he wouldn't work. He came in on
the first part of the week and told me that he would have to stay off the
91 Copeland 's version of Pickard 's discharge is discussed under Respondent 's conten-
tions as to the discharge , set out below.
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
road for two or three days, that he was having some glasses made. Well',.
naturally, I said it would be o'kay, because I didn't want a man out driving
equipment that couldn't see good, that needed glasses, so in three or four
days, why, he reported to work. He didn't have any glasses. I didn't see
any glasses and he went on out and the next day I caught him and checked.
with him and he had no glasses, and I let him go over that. [Emphasis
added.]
In this same connection, on cross-examination, Pickard testified:
Q. A short time, as a matter of fact, five days before you were employed!
[discharged], didn't you go out there and tell them you were going to be
unable to work for awhile . . . by the way, you don't wear glasses, do,
you, . . . five days before you were discharged, did you go out there and tell
them you couldn't work because you were having your glasses repaired?
A. I had got gasoline in my eyes, and, I was under doctor' s care, and he-
made me lay off five days, and take treatments.
Q. Will you answer the question?
Mr. WELLS. We submit he answered it.
Mr. WHITE. Read the answer.
Trial Examiner WARD. Read the question and the answer.
(Record read.)
A. I told them that I went out there, I called them and talked to themf
and told them that I had got gasoline in my eyes, to Mr. . . . Oh, I can't
call his name, the man that works in the office out there, and told' him that
I got gasoline in my eyes, and he told me to go to a doctor, and so I went to•
Dr. Block and Dr. Block said that I would have to lay off five days and take-
treatment for those eyes, that they were blistered, and he might have to&
put glasses on me, he didn't know, but he would know in the last, and which;
be didn't have to put glasses on me.
Mr. WRITE. Mr. Reporter, will you read him my question back, now, ands
see if he will answer that, please sir?
Mr. Whm.s. I submit it is fully answered.
Trial Examiner WARD. Read the question.
(Question read.)
Trial Examiner WARD. Answer that "Yes" or "No."
A. No 92
On cross-examination Copeland testified :
Q. (By Mr. WELLS.) Now, will you tell me in full detail what you said'.
and what Mr. Pickard said when you first talked to him about glasses or eyes;
• A. Well he came into my office, and he hold me, he said he couldn't go,
out on a trip because he was having some glasses made, and, I made the'
statement that I certainly didn't want him going out if he couldn't see to,
drive one of those units, and that it would be okay.
Q. Was that the entire conversation?
A. Yes.
sa While the undersigned finally directed Pickard to give a "Yes " or "No" answer to the
last question asked above, the two previous answers to the question remained in the-
record, since both previous answers replied to some portion of the question, which in
effect contained some three queries.
RAY SMITH TRANSPORT COMPANY 1097
Copeland further testified that the above-mentioned conversation with Pickard
took place after the discharges of the other drivers named above, on November
20, or on or about November 23; 93 and that subsequently Pickard took his truck:
out on one run. Copeland testified :
Q. Nothing wrong with his work on that run?
A. No.
Q. What conversation did you have with him?
A. I asked him the second out, when he came to report for work the-
second day, where his glasses was (sic), and he said he didn't have any,
and I let him go because his truck had set on the lot those days he was off-
having glasses made, and he just flat misled me on it. That is why I let him
go, [Emphasis added.]
Q. Was he off work?
A. He wasn't driving a truck. His truck set out on the lot all the time.
Q. Did he go back to work and start driving?
A. Yes, he did. I think, if I am not positive (sic) I think, Mr. Millican-
mentioned tome about him helping around in the-shop there. I am sure Mr..
Millican did, while he was having his glasses made. [Emphasis supplied.]
On the foregoing and the entire record, the undersigned is convinced and finds
that when Copeland discharged Pickard on November 26, he made no mention
of glasses whatsoever, but discharged Pickard by using the words substantially
as testified to by Pickard as set forth above ; that the most Pickard ever said.
to Copeland or "the man that works in the office" was that the doctor had said
Pickard's eyes were blistered from the gasoline that had gotten into them, and
that following treatment, "he might have to put glasses on" Pickard; and that
Pickard did not refuse to work, but while having his eyes treated put in his time
working in the shop for Millican."
Contentions (a) and (b) are each without merit.
As to contention (c), which appears to have been adopted by Copeland as a
new or "further" defense to Pickard's discharge as the result of leading and sug-
gestive questions, since Copeland testified that it was because Pickard had "flat
misled" him, by permitting his truck to remain idle on the lot while Pickard was
"off having glasses made," "That is why I let him go."
Respondent's counsel on cross-examination of Pickard and by sundry state-
ments sought to indicate that Pickard's appearance at the hearing disclosed
that he was unshaved ; needed a hair cut; and was not properly or neatly dressed..
From his personal and close observation of Pickard, the undersigned at no time
noted that Pickard's appearance indicated that he was not properly barbered or
clad. Copeland testified that Pickard's appearance was always "sloppy." He.
testified :
98 It should be noted, as found hereinabove, that Atwell testified that on November 19,.
Copeland told him, with reference to Pickard, that "As soon as I can . . . establish
the fact that he don't need glasses. I am going to let Pickard go." It is apparent that
Copeland could not know on November 19 that Pickard was going to tell him on November
23 that he needed a layoff from his truck run in order to be fitted with glasses.
94 The record does not disclose what, if anything, Pickard was paid for work done in
the shop during the time his eyes were under treatment. The fact that he did work in
the shop under the circumstances indicates that Pickard was not loafing on the job.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Was Pickard already working there when you became foreman?
A. He was.
Q. How long had he worked there?
A. I don't recall the date. Our records will show that.
-Q. How long was his appearance sloppy?
A. All the time he was there.
Q. From the first time you noticed him, he was sloppy?
A. That is right.
Q. All the time?
A. Yes, sir.
Q. Never did look neat or nice?
A. No, sir.
Q. It really bothered you about his appearance, all the while long?
A. It did, ever since I had been Operating Manager out there.
Q. Can you be specific as to any particular time when he did not wear
the prescribed uniform?
A. Because I looked at a certain pair of pants until my eyes are sore from
looking at a certain old gray pair of pants he wore around, I don't believe
that you could pick out anyone around who wouldn't tell you that.
The Respondent contended and introduced testimony to the effect that it was
a rule of the Respondent that its drivers must always present a neat uniformed
appearance.
The undersigned is of the opinion that if any fractional proportion of Cope-
land's testimony quoted next above was true, the Respondent would have dis-
.charged Pickard many months before it did so on November 26, 1948, and after
Pickard had become a union adherent. It follows that the undersigned does
,not credit Copeland's testimony as to Pickard's personal appearance and habits.
On the foregoing and the record, the undersigned finds contention (c) to be
-without merit.
(3) Conclusions as to the discharge
On the foregoing and the entire record, it appears and the undersigned finds that
.Pickard was a competent truck driver for the Respondent; that the Respondent
was opposed to union organization by its drivers ; that Pickard and six others of
Respondent's drivers joined in union activities which fact came to the knowledge
-of the Respondent ; that as to Pickard, he was discharged on November 26;
and that the reasons assigned by the Respondent for Pickard's discharge were
pretended ones only and were adopted in an attempt to cover up Respondent's
true reason, which was to discourage membership in the Union. On the basis
of the foregoing facts and upon the entire record, the undersigned finds that the
Respondent discriminatorily discharged Carl Pickard on November 26, 1948, in
violation of Section 8 (a) (1) and (3) of the Act.
Concluding findings
The above and the entire record disclose and the undersigned finds that by the
discharge of J. W. Bain, J. R. Veasey, E. O. Alexander, J. B. Worley, and Herbert
Straight on November 20, 1948, by the discharge of C. J. Needham, Jr., on
November 22, 1948, and by the discharge of Carl Pickard on November 26, 1948,
0 Copeland became operations manager on or about June 2, 1948.
RAY SMITH TRANSPORT COMPANY 1099
for assigned reasons found to be without merit as to each dischargee, the-
Respondent. discharged each-of said above-named employees because of their
membership in or activity on behalf of the Union, thereby discouraging member-
ship in the Union, and interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
The undersigned further finds by the conduct of Smith in stating to Bain that
"Before I will see my company organized I can run everything I have got in
the Trinity River" ; by Copeland's conduct in asking Alexander, shortly prior
to the latter's discharge, "What be knew about the Union," and by stating to
Alexander that "It might have been the Union," which occasioned his discharge;
by Copeland's statement to Worley, who, when discharged, asked Copeland,.
"if it could be possible that it [the discharge] was caused from the activity I
[he] had taken in the Union," replied, "I wouldn't be surprised" ; by Copeland's
statement to Pickard when he discharged the latter that if he "had kept his,-
nose out of the Union business," he would not have "got fired when the other
boys did" ; and by Atwell's conduct in stating to Veasey, after the latter's dis-
charge, when Veasey inquired as to his chances for reinstatement, that the only
way he (Atwell) would even think of reinstating Veasey would be for Veasey
"to forget about the Union, and not have anything to say about it," and to report
to Atwell anything Veasey "heard about the Union on the job," and by the
totality thereof, the Respondent has interfered with, restrained, and coerced its,
employees in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LAi30R. PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in!
connection with the operations of the Respondent described in Section I, above,.
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening andi
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices
the undersigned will recommend that it cease and desist therefrom and take-
certain affirmative action designed to effectuate the policies of the Act.
The undersigned has found that the Respondent has discriminated in regard.
to the hire and tenure of employment of J. R. Veasey, John W. Bain, C. J.
Needham, Jr., J. B. Worley, E. 0. Anderson, Herbert Straight, and Carl Pickard,.
thereby discouraging membership in the Union. In order to effectuate the policies.
of the Act it is recommended that the Respondent offer to each of the foregoing:
named discharged employees immediate and full reinstatement to their former
or substantially equivalent positions 98 without prejudice to their seniority or
other rights and privileges, and that it make them whole for any loss. of pay they
may have suffered by reason of the discrimination practiced against them, by
payment to each of them of a sum of money equivalent to that which he normally
96 In accordance with the Board 's consistent interpretation of the term , the expression
"former or substantially equivalent position " is intended to mean "former position
wherever possible , but if such position is no longer in existence , then to a substantially
equivalent position ." See The Chase National Bank of the City of New York , San Juan,.
Puerto Rico Branch, 65 NLRB 827.
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would have earned as wages from the date of their respective discharges to the
date of offer of reinstatement, less their net earnings °' during said period.
In view of the unfair labor practices found to have been committed by the
Respondent constituting violations of Section 8 (a) (1) and (3) of the Act, the
undersigned is of the opinion and finds that there is danger of the commission
of other and additional unfair labor practices since the violations thus far engaged
in by the Respondent have led to discrimination to such degree as would cause
the average employee reasonably to conclude that any union or concerted activity
on his part would lead to discrimination in his tenure and condition of employ-
ment. This disclosed attitude of the Respondent towards organization by their
supervisory employees and the continuous threat which it implies requires a
-cease and desist order as broad as the threat.
It will therefore be recommended that the Respondent cease and desist from
in any planner interfering with, restraining, and coercing its employees in their
rights to self-organization for the purpose of collective bargaining as guaranteed
.in Section 7 of the Act.D8
On the basis of the foregoing findings of fact and on the entire record in the
,case, the undersigned makes the following :
CONCLUSIONS of LAW
1. Dallas General Drivers, Warehousemen and Helpers, Local Union No. 745
:is a labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of J. R.
'Veasey, John W. Bain, C. J. Needham, Jr., J. B. Worley, E. O. Anderson, Herbert
.Straight, and Carl Pickard, the Respondent has engaged in and is engaging in
-unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
.of the rights guaranteed in Section 7 of the Act, Respondent has engaged in
.and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends the Respondent, Ray Smith Transport Company of Dallas,
"Texas, its agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Dallas General Drivers, Warehousemen and
.Helpers, Local Union No. 745, or any other labor organization of its employees
91 By "net earnings" is meant earnings less expenses, such as for transportation, room,
.and board, incurred by an employee in connection with obtaining work and working
elsewhere than for the Respondent, which would not have been incurred but for his
unlawful discharge and the consequent necessity of his seeking employment elsewhere.
See Crossett Lumber Company, 8 NLRB 440. Monies received for work performed upon
Federal, State, county, municipal, or other work-relief projects shall be considered as
earnings. See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
98 See May Department Stores Company, etc., V. N. L. R. B., 326 U. S. 376; Washington
National Insurance Co., 57 NLRB 1657; C. D. Beck & Company, 63 NLRB 1426; and
Caro hue Mills, Inc., 64 NLRB 376.
RAY SMITH TRANSPORT COMPANY 1101
thy discharging and refusing to reinstate any of its employees or in any other
manner discriminating in regard to the hire and tenpu•e of employment or any
terms or conditions of employment ;
(b) In any other manner interfering with, restraining, or coercing its em-
iployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist Dallas General Drivers, Warehousemen and Helpers,
Local Union No. 745, or any other labor organization, to bargain collectively
through representatives of their choosing and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection as
guaranteed in 'Section 7 of'the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
(a) Offer to J. R. Veasey, John W. Bain, C. J. Needham, Jr., J. B. Worley,
D. O. Anderson, Herbert Straight, and Carl Pickard, immediate and full rein-
-statement to their former or substantially equivalent positions without preju-
dice to.their seniority or other rights and privileges previously enjoyed ; and make
each of the aforesaid employees whole for any loss of pay they have suffered
by reason of the Respondent's discrimination against them in the manner pro-
,vided in the section entitled "The remedy" ;
(b) Post at the place of business of Ray Smith Transport Company, Dallas,
'Texas, copies of the notice attached hereto as an Appendix. Copies of said
notice, .to be furnished by the Regional Director for the Sixteenth Region, shall,
after being duly signed by the Respondent, be posted by the Respondent imme-
,diately upon receipt thereof, and maintained for a period of sixty (60) consecu-
,tive days thereafter in conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notice is not altered, defaced, or covered by other
material ; and
(c) Notify the Regional Director for the Sixteenth Region in writing within
ten (10) days from the receipt of this Intermediate Report what steps the
Respondent has taken to comply therewith.
It is further recommended that, unless the Respondent shall within twenty
(20) days from the receipt of this Intermediate report, notify the said Regional
Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the Respondent
to take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
I abor Relations Board any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report and Recommended Order or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and six copies of a brief in support thereof ;
,and any party may, within the same period, file an original and six copies of
a brief in support of the Intermediate Report and Recommended Order. Im-
mediately upon the filing of such statement of exceptions and/or briefs, the
party filing the same shall serve a copy thereof upon each of the other parties.
!Statements of exceptions and briefs shall designate by precise citation the
portions of the record relied upon and shall be legibly printed or mimeographed,
and if mimeographed, shall be double spaced. Proof of service on the other
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties of all papers filed with the Board shall be promptly made as required by
Section 203.85. As further provided.in said Section 203.46 should any party
desire permission to argue orally before the Board, request therefor must be
made in writing to the Board within ten (10) days from the date of service-
of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid'
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said'.
Rules and Regulations, be adopted by the Board and become its findings, con-
clusions, and order, and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington, D. C., this 29th day of November 1949..
PETER F'. WARD,
Trial Evamuiner:
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain,. or coerce our em-
ployees in the exercise of their right to self-organization; to form: labor-
organizations, to join or assist DALLAS GENERAL DRIVERS; WAREHOUSEMEN
AND HELPERS, LOCAL UNION No. 745, or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other
mutual aid or protection.
WE WILL OFFER to the employees named below immediate and full rein-
statement to their former or substantially equivalent positions without prey
udice to any seniority or other rights and privileges previously enjoyed, and.
make them whole for any loss of pay suffered as a result of the discrimina-
tion.
J. R. Veasey Herbert Straight
John W. Bain J. B. Worley
C. J. Needham, Jr. E. 0. Anderson
Carl Pickard
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
RAY SMITH TRANSPORT- COMPANY,
Employer.
By ---------------------------------------
(Representative ) ( Title)
Dated, ---------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.