Roadway Express, Inc.

National Labor Relations Board - Board Decisions

Oct 24, 1957

119 N.L.R.B. 104 (N.L.R.B. 1957)

104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
IV. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended,that it be ordered to cease and desist therefrom and to take
certain affirmative action which I find necessary to effectuate the' policies rand pur-
poses of the Act. Having found that Upchurch, Clift, and Richardone were dis-
charged on October 13, 1955, because they had concertedly presented a request
or a demand for a wage increase, it will be recommended that the Respondent offer
to each of them immediate and full reinstatement to their former or substantially
equivalent positions and make each whole for any loss of earnings suffered as a
result of the discrimination from October 13, 1955, to the date of the offer of
reinstatements As the complaint does not allege any violation of the Act in respect
to the discharge. of Bland-and Feldhauser, no remedy is incorporated for either, of
them. Back pay shall be computed in the manner set forth In F. W. Woolworth
Co., 90 NLRB 289.
CONCLUSIONS OF LAW
1. By presenting a concerted demand or request for a wage increase, Upchurch,
Clift, Richardone, Bland, and Feldhauser constituted themselves as a labor organi-
zation within the meaning of Section 2 (5) of the Act.
2. By discharging Upchurch, Clift, and Richardone on October 13, 1955, because
of their concerted activity in seeking a wage increase, the Respondent has discrimi-
nated and is discriminating in regard to their hire and tenure of employment, in
'violation of Section 8 (a) (3) of the Act.
3. By the discharges the Respondent has interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in Section 7 of the Act and has
thereby engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
b Upchurch, at the hearing, said he did not want to return to work at $1.86 an hour.
I do not view this as an unqualified refusal of reinstatement.
Roadway Express, Inc. and Morrice Mulligan Dulin . Case No.
11-CA-999. October 24,1957
DECISION AND ORDER
On January 11, 1957, Trial Examiner John C. Fischer issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. The Respondent and the General Counsel filed exceptions to
the Intermediate Report and supporting briefs.'
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions, briefs, and the entire record in the case, and
'The Respondent also requested oral argument. The record, the exceptions, and briefs
fully present the issues and the positions of the parties. The request is therefore denied.
119 NLRB No. 13.
ROADWAY EXPRESS, INC. 105
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner but only to the extent that they are consistent with the
following : 2
The Trial Examiner found that the discharge of employee Dulin
violated Section 8 (a) (1), but not 8 (a) (3) of the Act. Contrary
to the Trial Examiner, we find that the discharge violated Section 8
(a) (3) and (1) of the Act.
In September 1955 Dulin, together with other members of his local
union, was involved in an altercation with several leaders of the local
and of the international over a collective-bargaining agreement that
had been negotiated with a group of employers, including Respondent.
The altercation ended in a fight and the arrest of several participants,
not including, however, Dulin. As a result of this occurrence, the
union leaders decided that the contract: negotiated would -have to be
changed. They at once telephoned J. Robert Wilson, Respondent's
vice president in charge of personnel and labor matters, and asked
him to resume negotiations. Wilson hurriedly chartered a plane for
his trip from Akron, Ohio, to Charlotte, North Carolina, the site of
the new negotiations. Throughout the renewed conferences, the union
negotiators made repeated bitter mention of those union members
who had brought on their difficulties. Among those singled out was
Dulin.
About 6 months after the above-mentioned affray, Dulin sought a
job as a truckdriver at the Respondent's Charlotte, North Carolina,
terminal. Respondent considered his application to be among the best
of 178 which it had received for work on certain new routes it was
opening up. Assistant Terminal Manager Hilsheimer made a personal
verification of Dulin's references and after a review by Terminal
Manager Younger, Respondent agreed to hire him. Dulin thereupon
quit his job with another trucking company, Johnson Motor Lines,
and began working for Respondent on probation under the terms of
a collective-bargaining agreement with the Union, and a like arrange-
ment made with him directly, permitting Respondent to terminate
his employment at any time within 30 days of hire without recourse.
Beginning on March 5, 1956, he satisfactorily made trips to a number
of cities.
On March 23, 1956, according to the account credited by the Trial
Examiner, Terminal Manager Younger told Dulin that it was "the
hardest thing in the world for him to do," that he had "never run into
anything like this before," but that he would have to let Dulin go
"until you get all of your trouble straightened out with the Union .. .
you have got to go to the Union, and when you get that trouble
2 In view of our conclusion with respect to violation of Section 8 (a) (3) of the Act, we
do not reach or find it necessary to pass upon the Trial Examiner's finding that Re-
spondent 's conduct in violation of Section 8 (a) (1) at the ; time of Dulin's dismissal
made Dulin 's discharge discriminatory.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
straightened out you have got a job as long as you want it as far as we
are concerned." Hilsheimer, who was also present at this interview,
added that it was a "shame" to see something like this happen to a
man like Dulin. Two or three weeks after his discharge Dulin re-
turned to the terminal and asked Hilsheimer why he had been fired.
Hilsheimer replied, according to the credited testimony, "You have
had union trouble. That is all I know." Younger, similarly inter-
rogated later, told Dulin that he could do nothing to have him re-
hired; his hands were tied. Younger added, "I can't tell you any-
thing; I have a job to think about myself and I am married and have
a family." 3
Respondent explains the discharge of Dulin as follows : In the
early part of March 1956, Respondent was in the process of amalga-
mating and integrating the personnel records of its approximately
1,800 truckdrivers at its Akron,, Ohio, office. While examining some
of the files, Vice President Wilson, in charge of personnel came
across the file of Dulin. The name of Dulin "rang a, bell" in Wilson's
mind. Inquiring if this was the same Dulin who had been involved
in the intraunion fracas about 6 months earlier, and ascertaining that
he was and that he was still in his probationary period, Wilson or-
dered his discharge. Wilson stated that he did not indicate his reason
for ordering the dismissal of Dulin to the Carolina district manager
who was charged with responsibility for executing the order. How-
over, the reason for issuing the release order, according to Wilson,
"was the fact that [Dulin] was known to me as being a person of
Short temper and having engaged in a street brawl, that he was not
the type of person possessing the general temperament that we wished
to have on the part of our road drivers."
The Trial Examiner accepted this explanation of the discharge of
Dulin although he rejected Wilson's characterization of Dulin as a
"man of quick anger." He considered the statements by Younger
and Hilsheimer bearing on the reasons for Dulin's discharge as merely
guesses as to Wilson's motive and not evidence against Respondent.
We cannot accept Wilson's explanation of his motive in ordering
the discharge of Dulin. It does not ring true. For one thing, his
account of the alleged unpremeditated manner in which he happened
3In this conversation , Younger also said, according to Dulin , that the latter was dis-
charged because of "union trouble . . . the company had been threatened to let [him] go
before something happened to the men and the equipment up the road ." The Trial
Examiner credited Younger's denial that he made such an explanation for the discharge.
We do not accept the Trial Examiner 's resolution of credibility as to this. At every other
point where Dulin's testimony conflicted with that of Younger , the Trial Examiner
credited Dulin over Younger. The Trial Examiner credited other parts of Dulin's version
of the same conversation with Younger. We can therefore perceive no sound basis for his
discrediting this particular part of Dulin 's testimony . It is certainly not improbable. On
the contrary , it is consistent with other parts of the credited testimony and furnishes a
plausible explanation for Respondent 's discharge of Dulin . Accordingly, we credit Dulin's
version of what Younger told him was the reason for the discharge. '
ROADWAY EXPRESS, INC. 107
:across Dulin's name among the files of 1,800 drivers and recollected
Dulin's role in the intraunion squabble is suspicious. For another,
it would seem that if Respondent's concern was solely with Dulin's
capacity as a driver his actual record would outweigh any inference
that might be drawn from the fact that he had engaged in a fight
on his own time in a matter which was not the concern of Respondent.
Dulin had been a truckdriver for 9 years, had excellent references,
had won a safety award for his driving, and was highly recommended
by his previous employer. Terminal Manager Younger thought so
highly of Dulin that he delayed a week in carrying out the discharge
order. All this information was available in Dulin's file or could have
been readily obtained by a telephone conversation with Younger.
Apparently, Wilson ignored all of it. Nor did he give Dulin the
opportunity of explaining his role in the intraunion fight. Wilson
also testified that he had received a confidential investigation report
on Dulin which characterized the latter as "a man of quick anger."
Respondent did not produce this report at the hearing and Wilson
was unable to say whether he had received the report before or after
he had made the decision to discharge Dulin. The Trial Examiner
found that this recital was "suspect," and that Dulin was not shown
to be "a man of quick anger" but an entirely normal human being.
We agree. Moreover, Wilson testified that he discharged Dulin be-
cause he regarded men who got into fights as undesirable drivers.
Yet 2 weeks before the employment of Dulin, Younger and Hilsheimer
'hired as a driver James Jones, whose application showed on its face
that he had been convicted of assault. At the time of the hearing,
Jones was still employed by Respondent. Apparently, Wilson's sub-
ordinates were unaware of any restrictive hiring policy as alleged.
Finally, we do not agree with the Trial Examiner's conclusion that
the credited statements of Younger and Hilsheimer that Dulin had
been discharged because of union trouble were mere speculations. On
the contrary, these statements have all the earmarks of statements of
fact. We find it improbable that Wilson would have ordered the
discharge of Dulin without giving a reason therefor to Dulin's im-
mediate supervisors. In view of Younger's temporizing and his con-
'ceded reluctance to let Dulin go, it is evident that if Younger did not
know the reason for the firing at the time he was told to dismiss Dulin,
he became apprised of it before finally yielding to his superior's
directive. We therefore accept the statements of Younger and Hils-
heimer as admissions bearing on Respondent's motive in discharging
Dulin.
We conclude, upon the basis of the entire record, that Respondent
discharged Dulin, not because of his temperament, but because of the
insistence of the Union based upon the fact that Dulin had opposed a
collective-bargaining agreement negotiated by the Union's leadership.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that by such conduct Respondent discriminated against Dulin
in violation of Section 8 (a) (3) and ( 1) of the Act .4
ADDITIONAL CONCLUSION OF LAW
By discriminatorily discharging Morrice Mulligan Dulin Respond-
ent has engaged in an unfair labor practice within the meaning of
Section 8 (a) (3) and (1) of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Roadway Express,
Inc., Charlotte, North Carolina, its officers , agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Encouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
AFL-CIO, or in any other labor organization of its employees, by
discriminating in regard to hire or tenure of employment or any
term or condition of employment, except to the extent permitted by
the proviso to Section 8 (a) (3) of the Act;
(b) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their right to self-organization, to
form, join or assist any labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any or all of such
activities except to the extent such right may be affected by an agree-
ment requiring membership in a labor organization 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 Morrice Mulligan Dulin immediate and full reinstate-
ment to his former or a substantially equivalent position, without
prejudice to the seniority or other rights and privileges previously
enjoyed by him.
(b) Make whole Morrice Mulligan Dulin for any loss of pay he may
have suffered by reason of the Respondent's discrimination against
him, in the manner set forth in the section of the Intermediate Report
entitled "The Remedy."
4 See Roadway Express, Inc., 108 NLRB 874, which involved Respondent and another
local of the Teamsters Union . The Board found in that case that Respondent, under
pressure from the union , had contrived a pretext for discharging two employees who were
in disagreement with the union 's leadership.
ROADWAY EXPRESS, INC. 109
(c) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of back pay due
and the rights of employment under the terms of this order.
(d) Post at its plant at Charlotte, North Carolina, copies of the
notice attached hereto marked "Appendix A." 5 Copies of said notice,
to be furnished by the Regional Director for the Eleventh Region,
.shall, after being duly signed by Respondent or its official representa-
tive, be posted by Respondent immediately upon receipt thereof, and
maintained by it for a period of sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to
,employees customarily are posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for the Eleventh Region in writ-
ing, within ten (10) days from the date of this Order as to what steps
Respondent has taken to comply herewith.
MEMBERS RODGERS and JENKINS took no part in the consideration
.of the above Decision and Order.
. 5In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
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 encourage membership in International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL-CIO, or in any other labor organization of our
employees, by discriminating' in regard to hire or tenure of em-
ployment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organiza-
tion, to form, join, or assist any labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to refrain from
any or all such activities except to the extent that such right may
be affected by an agreement requiring membership in a labor
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization as a condition of employment, as authorized, in:
Section 8 (a) (3) of the Act.
WE WILL offer Morrice Mulligan Dulin immediate and full re-
instatement to his former or a substantially equivalent position,,
and will make him whole for any loss of pay suffered as a result
of the discrimination against him.
All our employees are free to become, remain, or refrain from
becoming or remaining, members of the above-named union, or
any other labor organization, except to the extent that this right
may be affected by an agreement in conformity with Section 8-
(a) (3) of the Act.
ROADWAY EXPRESS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The proceedings herein authorized by and conducted in accordance with the
provisions of Section 10 of the Labor Management Relations Act, 1947 (61 Stat. 136),
hereafter called the Act, were initiated by the filing of a charge on April 5, 1956,
by Morrice Mulligan Dulin, an individual, against Roadway Express, Inc., herein
called Respondent. Based upon this charge the General Counsel of the National
Labor Relations Board, separately designated as General Counsel and the Board,
issued a complaint against Respondent dated May 21, 1956, alleging that the
Respondent had engaged in unfair labor practices affecting commerce, in violation
of Section 8 (a) (1) and (3) I of the National Labor Relations Act. More spe-
cifically, the complaint alleged that the Respondent on or about March 23, 1956, at
its Charlotte truck terminal, discharged and thereafter failed and refused to reinstate
its employee, Morrice M. Dulin, in order to encourage membership in a labor
organization, and in order to interfere with, restrain, and coerce him and its other
employees in the exercise of the rights guaranteed in Section 7 of the Act.
The Respondent duly filed its answer denying the commission of the aforesaid
unfair labor practices on May.29, 1956, and affirmatively pleaded that Morrice M.
Dulin was a new employee who had not completed his probationary period of
employment at the time of his discharge and, therefore, had not qualified to become
a permanent employee. That Dulin was separated from his employment because
he was considered as possessing undesirable qualities or characteristics for a perma-
nent employee of the Company.
' "SEC. 7. Employees shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, and shall also have the right 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).
"SEc. 8. (a) It shall be an unfair labor practice for an employer-
"(1) to interfere with, restrain, or coerce employees in the exercise of the :rights
guaranteed in section 7;
a o a a a a a
"(3) by discrimination in regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage membership in any labor
organization z a t i o n :
ROADWAY EXPRESS, INC. 111
Copies of the charge, complaint, answer, and other pertinent process were duly
served upon all parties in interest. Pursuant to notice, a hearing was conducted
at Charlotte, North Carolina, on July 24, 1956, by Trial Examiner John C. Fischer,
duly designated by the Chief Trial Examiner. All parties were present and were
afforded full opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence pertinent to the issues involved, to argue orally upon the record,
and to file written briefs and proposed findings and conclusions within a fixed time
from the close of the hearing. Respondent Counsel Rabe moved to dismiss the
complaint at the conclusion of General Counsel's case-in-chief, and renewed his
motion at the close. This motion is disposed of herein.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. BUSINESS OF THE EMPLOYER
Roadway Express, Inc., is now and has been at all times material herein, a corpora-
tion engaged in hauling freight as a common carrier by motor vehicle into and
through the States of North Carolina and South Carolina, among other States,
under certificates issued by the Interstate Commerce Commission, with dock and
terminal facilities located in Charlotte, North Carolina, as well as elsewhere. In
the course and conduct of its business operations during the past year, which period
is representative of all times material herein, Respondent received revenue totaling
more than $40,000,000 derived from its interstate operations.
It is admitted and I find that Respondent's operations affect interstate commerce
within the meaning of Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters , Chauffeurs , Warehousemen, and Helpers
of America , AFL-CIO, is a labor organization admitting to membership employees
of the Respondent at its Charlotte terminal.
III. THE UNFAIR LABOR PRACTICES
The Discharge
The opening statement of Counsel Griffin to the Trial Examiner charged that
Dulin, a newly hired truckdriver, was fired by his employer, Roadway Express,
Inc., because that Company was afraid of having difficulty with the Teamsters
Union. Hence, the alleged contravention of Section 8 (a) (3) of the Act.
On September 1, 1955, Dulin, an experienced 2 truckdriver, had been employed
by Johnson Motor Lines for the preceding 5 years. Dulin continued with Johnson
Lines until March 3, 1956, when he quit, after giving notices and went to work as
a "longline driver" for Respondent Roadway. On March 23, he was discharged by
direction of the Akron home office of Respondent after having driven to Chicago,
Detroit, Cleveland, Cincinnati, St. Louis, Akron, and Memphis. Dulin described
that he received a note when he came in to work on the morning of March 22 to
report to Terminal Manager Younger or Assistant Manager Hilsheimer before going
out on the next trip. Being unable to contact Younger that day, Thursday, Dulin
met Younger and Hilsheimer on Friday. He quoted Younger as saying they would
have to let him go "until he got all of his trouble straightened out with the Union."
Younger, however, stated that his reason for dismissing Dulin was "instructions
received from my immediate superior."
Dulin's Trouble With the Union (a cause celebre)
Dulin's difficulty with the Union was occasioned by a fight, fracas, or near riot
which occurred on the first Saturday or Sunday of September 1955-Dulin believes
Saturday-Roadway's vice president and public relations officer, indicates Sunday.
The fracas culminated a meeting in Charlotte, North Carolina, called and held by
national and local officials of the Teamsters Union headed by James Hoff a of Detroit.
Some 700 rank-and-file local members congregated for the purpose of accepting
2 Evidence was introduced which showed that Dulin had won a trophy for safe driving,
as well as the unrefuted testimony that of 178 applicants, his was one of the best ever
received by Manager Johnson.
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or refusing a proposed "Over-the -Road Agreement , For the Period September 1,
1955 and ending August 31 , 1961 ." Dulin's recital of the events to Charlotte Man-
ager Younger, shortly after discharge , was as follows:
I told him that we had a meeting down there at the Fox Theatre in Charlotte,
and I said we got in a meeting and Jimmie Hoffa, a fellow by the name of
Caviner, Flynn , Gunter and Ed Hargett were present representing the Union,
and so Hoffa got up and read the contract or read what he wanted us to hear.
When he read it he would read a page and then skip over and turn a page and
read another little paragraph , and asked was there any questions , and so they
said they did not have time, that they had to go to another meeting scheduled
in Winston-Salem and that they had to be there that night , and so "We don't
have time." He said, "We will presume that the contract is accepted," and
he said "Everybody in favor of it stand up," and he said a big number, some-
thing like 700 and some was for it and said who was against it and said 60
or 80 or 100 was against it, and said the contract is accepted so that ended
the meeting . Then they started filing out of the theatre , and in the meantime
on the inside there had been several men who tried to get the floor, wanted
to ask questions and he said that they did not have time; and he said the
meeting was over so they started filing out of the theatre and downstairs to
the street , there was I would say ten or twelve maybe of us or more , I don't
remember , standing out in front . One of the men suggested when they come
out that we stop them and talk to them and find out what we had. We did
not know any more than we knew before when we came down there. So Hoffa,
Jimmie Hoffa, Caviner , Flynn, and Gunter came out the door. So we walked
up to them and told them we would like to talk to them, and Jim Hoffa said
he did not have anything to say, that he had said everything that he was going
to say, and one of the employees reached and got a hold of his arm or some-
thing and Gunter ran up, Al Gunter ran up and with his hand drew back
like he was going to hit him , and when he did I walked up and caught him
by the lapel like that (Dulin illustrated ) facing him and kind of pushed him
back to the doorway of the theatre . The next thing I knew I looked around
and Jimmie Hoffa was on the ground and I don't know how. I know I did
not hit him or touch him , and I never did hit Gunter , but he was begging
me not to, he was a sick man and all of that stuff , and he told some of the
boys that we did not have any business coming down there. I did not hear
that but he told some of the boys that we did not have any business coming
down there , the contract was accepted two weeks ago, and the next thing I
knew, down on the corner I believe it was Third Street and Tryon , I looked
down there and they were having a free for all out in the street, Caviner and
Hoffa and Flynn and then the boys that were involved in it was George Spurling,
McCoy, Alexander and Lynch . Well then, the police came along and
broke it up and that was the end , and they arrested Jimmie Hoffa, Caviner,
Flynn , McCoy, Spurling and Lynch , no McCoy was not arrested.
Q. Is that the story that you told Mr. Younger at that time?-A. Yes.
Q. What did he say if anything?-A. He asked me, he said , "Are you sure
that you did not hit Gunter or strike him anywhere ," and I said , "No, I did
not hit him, I just held his coat or lapel facing him."
The Trial Examiner accepts the above as a forthright recital of the facts con-
cerning Dulin's participation in the fracas . The cogent background evidence anent
the fracas or near riot as cognized by Roadway is contained in the following testi-
mony given by J. Robert Wilson , vice president in charge of personnel and labor
matters for Respondent Roadway:
During the late summer or early fall of 1955, I was engaged in, as a member
of the negotiations committee on behalf of the employer in connection with
the negotiations which resulted in the so-called Carolina Over the Road Agree-
ment, called the Cartage Agreement . As a result of the joint committee,
namely the representatives of the employer and the unions , we reached an
agreement on the road contract the very last part of August , either on the
31st or September 1st. It was subject to ratification by the membership of
the various affected local unions . It was scheduled for presentation to the
membership of the Charlotte local on a Sunday. I do not recall the specific
date, our agreement having been reached and signed by the representative of
the parties , I returned to Akron , Ohio on Saturday . I received a call late
Sunday afternoon that the negotiations had blown up as a result of a street
brawl that had occurred in Charlotte , and it would be necessary for me to
ROADWAY EXPRESS, INC. 113
return immediately to resume negotiations of the contract. Being unable to
procure commercial transportation, I got the services of a private plane and
returned that night, and upon reconvening with the Union representatives, sev-
eral had visible bruises, black eyes, etc., and there was quite a bit of comment
as to what the Hell happened here, and you can imagine the things, and during
the course of the next few days there was repetition as to the names of the
parties who had been involved. One of those persons referred to was Cotton
Dulin, Cotton I understand being his nickname. It was stated that the entire
fracas involved Johnson Motor Lines drivers. [These were] the circumstances
under which the name Dulin came to my attention.
Dulin is Hired and Fired
About 6 months after the fight or fracas had occurred Dulin heard that Roadway
was putting on, permanently, some new routes out of Charlotte. After some three
conferences with Manager Younger and Assistant Manager Hilsheimer, Dulin
testified that he was employed on the basis "if my record turned out all right,
nothing against me, no accidents or anything like that." Having resigned from
Johnson on March 3, he started to work on March 5 and successfully completed
several longline trips to various cities. On March 23, Dulin was discharged by
Manager Younger in presence of Hilsheimer. He quoted Younger as follows: "It
is the hardest thing in the world for me to do. I never run into anything like this
before. We are going to have to let you go. . We will have to let you go until
you get all of your trouble straightened out with the union." Dulin asked what
was meant by trouble with the union and was told: "Well, you have got to go to
the union, and when you get that trouble straightened out you have got a job as
long as you want it as far as we are concerned." Dulin further quoted Younger
as stating that if he had known that anything like this was going to happen, he
would never have hired Dulin; that he did not know what to do-concluding: "I
was supposed to let you go a week ago." (Dulin quoted Hilsheimer as saying that
it was a shame to see something happen to a man like that.) On examination,
Younger was asked by Counsel Rabe if he said that "you would have to let him go
until such time as he got some things straightened out with union." Turning to the
Trial Examiner, Younger asked:
Q. Could I give you a little background on the conversation?
TRIAL EXAMINER: Answer yes or no, and make such explanation as you wish.
A. In the course of the conversation; Mr. Dulin asked why he was being
discharged, and naturally I did not know why he was being discharged, and
in the course of the conversation it was asked if he could go to the union for
them to represent him and get it straightened out, and I did say yes.
Q. (By Mr. Rabe.) Who asked if it was all right?-A. Mr. Dulin.
Q. He asked if you had any objection if he went to the union or if you thought
he could get any help.-A. Well, in the course of the conversation it came up
that naturally he being a member of the union, and that we were discharging
him within the thirty days probation, if the union could represent him or if
he could go down to the union hall, and of course I told him that was the
place for him to go.
The Trial Examiner does not accept this version, because it appeared to him that
Younger was equivocating. Younger's explanation is patently untenable.
Conflicting Testimony of the Discharge
At Dulin's second meeting with Younger in which he had recited the events of
the fracas, it was arranged that he should "come back in a few days." Dulin went
back about the second week in April to see Younger, but in Younger's absence,
saw Hilsheimer instead. In response to his request for information or help he was
advised by Hilsheimer that the only thing Hilsheimer knew was: "You have had
union trouble." Dulin testified that as he started to leave, Hilsheimer followed
him out on the walkway and volunteered that he had a friend in the Federal Bureau
of Investigation quoting: "I will talk to him and see if there is anything that can
be done about it, or any way that he can [help]. As far as we are concerned the
company would be behind him one hundred percent to break the union trouble up."
Hilsheimer's differing version was: "I recall discussing in person with him where
the FBI was mentioned. Mr. Dulin said to me that his release might be connected
with a case that he was familiar with in Baltimore that the FBI was working on
and there was some discussion between us on that." Hilsheimer stated that Dulin
476321-58-vol. 119-9
114 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
broached the subject of the FBI, but the Trial Examiner was convinced that Dulin
was giving the truthful version on this issue. Hilsheimer also quoted Dulin as
indicating that he "suspected that the union was at fault more so than the company,
and that he was discharged for that." Although Dulin did not file a charge against
the Union, he did not repudiate this allusion.
The following week, however, Dulin was successful in meeting Younger. Dulin's
accepted and credited testimony in this connection was:
A. I asked him if he could give me any information because he had told
me to come back, and he told me that he could not. He said his hands were
tied, they could not do anything, and said "I can't tell you anything else about
it." He said "I wish I could but I cannot tell you anything," he said, "I have a
job to think about myself and I am married and have a family."
Q. Did he tell you whether the decision to discharge you was his or not?-
A. Yes, sir. He said it was not his own idea, he said it come out of the main
office from Akron, Ohio. He did not tell me by whom it was sent, he just said
it come from the main office.
Q. Did he tell you the reason given to him?-A. Yes, sir, he said it was
union trouble, he said the company had been threatened to let me go before
something happened to the men and the equipment up the road. [Emphasis
supplied.]
Younger categorically denied telling Dulin that the Company had been threatened
if he were retained. His story was that Mr. O. T. Lippard, his immediate super-
visor with offices in Winston-Salem, conveyed to him Akron general offices' orders
to fire Dulin, that he asked Lippard the Company's reason, and that he, Lippard,
did not know. Younger persists to this day that he has never been told the reason?
The Trial Examiner accents the fact that Younger has never been told the reason
for Dulin's dictated discharge because Mr. Wilson, the Company's expert in labor
relations, did not choose to explain his decision to his subordinates in the field.
Younger, personally confronting Dulin felt compelled and did offer his explanation
"union trouble."
Wilson's Version of Dulin's Discharge
J. Robert Wilson, Roadway's vice president in charge of employee and employer
relations, testified that in the early part of March 1956 the Company was in the
process, at the Akron office, of amalgamating and integrating the records relating
to some 1,800 road drivers. While reviewing individual files, about the middle of
March 1956, Wilson came across the name of Dulin. (Wilson admitted that he did
not review all individual files.) He testified that he had not carried the name
"Dulin" in his memory for the previous 5 months but, "it rang a bell and I then
made further inquiry because of the name, as the full name was presented [Maurice
Mulligan Dulin] I did not connect it and I had reference to the part of Cotton
Dulin." Wilson stated: "I made inquiry to ascertain whether this was the Dulin
who had been with Johnson Motor Lines, to ascertain the identity, if he was the
same individual that had been involved in or reportedly involved in the street
fight the preceding September . . . I learned that it was the same Dulin." Wilson
testified that he did nothing else other than to look over the file which was on hand.
Wilson stated that he ascertained from the file, which was on hand, that Dulin
"was still within the probationary period as covered by the employment application
form and the applicable union contract." 4 Wilson continued: "Finding that he
3 That Younger was sympathetic to Dulin and could advance no good reason to fire him
other than for "union trouble" is evidenced by the fact that when Dulin came to him and
asked him to fill out forms for unemployment compensation he wrote that Dulin was "let
go for lack of work." Younger's explanation in this connection was : "Because there are
two forms that the unemployment office fills out, one is a form without disqualification
for benefits and one is with disqualifications, and in my own opinion that I had received
instructions from our general office, or from my immediate superior to release him, I could
not put any reason down because I did not know the reason, so therefore I put the next
thing which was lack of work. And lie would be eligible for benefits under the un-
employment." Younger was so distressed with having to fire Dulin, by direction, that,
according to driver J. R. Jones, "he took it up with his wife." Younger knew that Dulin
was a competent road driver of 9 years' experience, but was an unfortunate victim of
circumstances-he became involved in an intraunion fracas.
d At the time Dulin went to work, he was under a temporary agreement : "that the first
thirty days of such employment shall be on a temporary or probationary 'basis, during
which period the employer may terminate the undersigned's employment without any
recourse on the part of the undersigned." [Emphasis supplied.]
ROADWAY EXPRESS, INC. 115
was within the applicable probationary period, I had summary orders prepared for
his release and notified the people in Carolina, I notified our district manager
[Lippard]." Wilson said that he did not indicate his reason for dismissing Dulin
to the Carolina district manager. He testified: "Well, the reason for the issuance
of orders of release was the fact that he was known to me as being a person of short
temper and having engaged in a street brawl, that he was not the type of person
possessing the general temperament that we wished to have on the part of our road
drivers."
Wilson explained that as a part of Roadway's employment procedure a direct
investigation by a separate confidential agency is initiated at the time of the decision
to employ an individual and added: "all answers must be expeditiously returned as
we must have them prior to the first thirty days of employment." Wilson testified
that the particular investigators' reports were received after Dulin's hiring, but
within the 30 days, noted that "he [Dulin] was a man of quick anger." Wilson
said he could not say for certain that he had received the confidential investigation
report at the time he issued his instructions for Dulin's dismissal , stating: "I do
recall a recheck of the information that we had on file in the general office at that
time, and whether it is a retroactive piece of information or not, I do not know."
The record is not clear as to whether Wilson ascertained from the file on hand, or
from the confidential report (if a retroactive piece of information) that "he was a
man of quick anger." The recital is rendered suspect. From his observation and
study of the whole record, however, the Trial Examiner is of the opinion that
Dulin was not shown to be "a man of quick anger" but was an entirely normal
human being. Wilson further testified that if Dulin had passed the 30-day pro-
bationary period specified in the union contract, he would not have directed Dulin's
discharge because, under the grievance procedure of the contract with the Union,
Roadway would have waived its right of summary dismissal by having kept him
beyond the 30-day period. Wilson also testified that the Union played no part
in his decision to dismiss Dulin. His material testimony in this connection on direct
examination by Respondent Counsel Rabe was as follows:
Q. (By Mr. Rabe.) In reaching your determination to issue the instruction
for dismissal of Mr. Dulin, did you or had you been urged by any represent-
atives of the Teamsters Union to take such action?-A. I was not.
Q. Were you ever contacted by any union representative in reference to
Mr. Dulin's dismissal?-A. I was not.
General Counsel Griffin admitted: "We made no contention and did not intro-
duce any proof as to whether or not any member of any union specifically
requested the company to take action." In this connection the General Counsel
argued:
I believe that the only inference that can be drawn is that it was done either
at the Union's request, of which I agree that there is little or no evidence in
the record, or else from Mr. Wilson's premonition that they might have difficulty
with the Union if they retained him."
It is obvious that a finding cannot rest merely upon guess, suspicion, or specula-
tion predicated upon inferences arising from widely separated and unconnected
incidents. Particularly is this so when inferences are utilized to overcome direct
and positive testimony. See Indiana Metal Products Corp. v. N. L. R. B., 202 F.
2d 613; A. E. Staley Mfg. Co. v. N. L. R. B., 117 F. 2d 868, and Martel Mills
Corp. v. N. L. R. B., 114 F. 2d 624. In the last cited case the court refused enforce-
ment of the Board's order against the Company for an alleged discriminatory
discharge of an employee. The motivating cause was in issue as it is here. The
Board had found an improper motive based upon circumstantial proof. In rejecting
the finding as not substantially supported, the court stated, quite appropriate to the
instant situation, as follows: "We do not lose sight of the fact that our inquiry
is centered upon the motivating cause of the employer's action. The task is a
difficult one. It involves an inquiry into the state of mind of the employer. Such
inquiry is laden with uncertainties and false paths. Obviously our chief guide is the
words of the witness under oath who undertook to disclose the workings of his
mind. If his explanation is a reasonable one, the onus is upon the Board to establish
the falsity of this explanation and the truth of its own interpretation." This same
line of reasoning is applicable to Manager Younger's statements in discharging Dulin
except that Younger was merely carrying out a directive and, it is found, gratuitously
offered his own explanation for Dulin's discharge.
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Resume of the Facts
Morrice Mulligan Dulin, a member of the International Teamsters Union Local
71 and an experienced long-line truckdriver for many years, became involved on
September 1, 1955, in a "fracas or near riot" at the conclusion of a statewide con-
ference held in Charlotte, North Carolina. This fracas required police intervention
with the arrest of several participants. Dulin forcibly restrained an officer of the
local union from striking Dulin's friend who was attempting to engage national
union leader, Jimmie Hoffa, in discussion. Among those engaged were national
and local officials and supporters of Teamsters Union on the one side, and local
rank-and-file members on the other. Then, on March 3, 1956, Dulin, having quit
his former employer, Johnson Motor Lines, was hired by Respondent Roadway.
Next, on March 23 Dulin was discharged by Charlotte Terminal Manager Younger
"until he got all of his trouble straightened out with the Union.... Well, you
have got to go to the Union, and when you get that trouble straightened out you
have got a job as long as you want it as far as we are concerned." Dulin's dismissal
had been directed to Younger from Roadway's Akron headquarters via Winston-
Salem Regional Manager Lippard. Vice President Wilson had personally ordered
the discharge during Dulin's 30-day probationary period because he decided that
Dulin was a man of quick anger and not the type of person possessing the general
temperament that Roadway demanded of its road drivers. In light of the record,
local Charlotte officials were never informed of the official reasons for Dulin's dis-
charge, and there is no evidence in the record that the Union requested the discharge.
Although Dulin suspected the Union as being more at fault than the Company and
was in a mood to go to the union hall and "rub them up," he filed no such charge
with the Board. The fact is found that Dulin was dismissed by Manager Younger
"by direction from his superiors" but for reasons not communicated to him. (This
action he took was against his will.) He was asked by Dulin to assign his reasons
and did the only thing a reasonable boss could do, namely, offer what he thought
could be the only logical reason-"union trouble," because Dulin's involvement in
the fracas was a matter of common knowledge throughout the local truckdriving
fraternity, and was known to him.
The question then arises whether a discharge or dismissal "until he got all of his
trouble straightened out with the union" constitutes a violation of the Act. It is
found to be violative of Section 8 (a) (1) of the Act.
Conclusion
The complaint alleges that Respondent discharged and refused to reinstate Dulin
in order to encourage membership in a labor organization ; and in order to interfere
with , restrain , and coerce him and its other employees in the exercise of the rights
guaranteed in Section 7 of the Act . The normal effect of the words used by Younger
in carrying out his unexplained direction from higher authority was discriminatory
in that it tended to interfere with, restrain , and coerce him and other employees in
the exercise of his rights to join or refrain from joining a union by forcing him to
go to the Union in order to get his trouble straightened out. Younger was acting
within the scope of his authority . Therefore under the applicable rules of agency,
his words are imputed to the Company because all corporate action is , of necessity,
vicarious . In each case where an employer is charged with a violation of Section
8 (a) (3), the Board must determine whether the complaining employee was in
fact discriminated against because of activities which are protected by Section 7 of
the Act . ( Cf. Twentieth Annual Report of the National Labor Relations Board,
1955. ) Such discrimination also violates Section 8 ( a) (1) independently, and
may be found to violate that section alone . Such is found to be the case here-only
a violation of Section 8 (a) (1). However , whether viewed as a violation of Sec-
tion 8 (a) (3) or 8 (a) (1), the remedy is the same and the employee 's right to
reinstatement and back pay is the same . See Olin Mathieson Chemical Corporation,
114 NLRB 486; Tex Togs, Inc., 112 NLRB 968; Brookville Glove Company, 116
NLRB 1282; Marlin Firearms Company , 116 NLRB 1834. Somewhat comparable
situations where violations of Section 8 (a) (3) were found by the Board are il-
lustrated in Insulation Contractors of Southern California, Inc., etc ., 110 NLRB
638, and P. R . Mallory & Co. Inc., 111 NLRB 38.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
WESTINGHOUSE ELECTRIC CORPORATION 117
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices in vio-
lation of Section 8 (a) (1) of the Act it will be recommended that it cease and
desist therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
It has been found the Respondent discriminatorily discharged Morrice Mulligan
Dulin on March 23, 1956. In view of the foregoing findings the Trial Examiner
will recommend that the Respondent make an offer of reinstatement to Morrice Mulli-
gan Dulin; it is recommended that the Respondent make whole Morrice Mulligan
Dulin for any loss of wages he may have suffered as the result of the discrimination
against him by payment to him of a sum equal to the amount which he nor-
mally would have earned as wages from the date on which the Respondent dis-
charged and failed to reinstate him to date, less his net earnings during such period
(Crossett Lumber Company, 8 NLRB 440, 497-498), said back pay to be com-
puted on a quarterly basis in the manner established by the Board in F. W. Wool-
worth Company (90 NLRB 289). The Respondent upon request shall make avail-
able to the Board or its agents for examination and copying all payroll, social
security and personnel records and reports, and all other records and reports
necessary to determine the amounts of back pay.
The nature of the unfair labor practices committed by the Respondent indicate
a general purpose to limit the lawful rights of employees and persuade the Trial
Examiner that such practices are potentially related to similar unfair labor prac-
tices, the future commission of which may be reasonably anticipated from the
Respondent's past course of conduct. The preventive purposes of the Act will be
thwarted unless the recommended order is coextensive with the threat. It is there-
fore recommended that a broad cease-and-desist order issue against the Respondent.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent Roadway Express, Inc., is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. By discriminatorily discharging Morrice Mulligan Dulin the Respondent has
engaged in an unfair labor practice within the meaning of Section 8 (a) (1) of
the Act.
3. By such discrimination, including the failure to reinstate this employee without
prejudice to his seniority and other rights and privileges, the Respondent has in-
terfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act and has thereby engaged in and are 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 within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Westinghouse Electric Corporation (Meter Plant ) and Interna-
tional Union of Electrical Radio and Machine Workers, AFL-
CIO, Petitioner. Case No. 11-RC-901. October 24, 1957
ORDER DENYING MOTION
Pursuant to a stipulation for certification upon consent election, an
election by secret ballot was conducted on December 14, 1956, among
certain employees at the Employer's Raleigh, North Carolina, plant.
At the conclusion of the election, the parties were furnished a tally
of ballots which showed that the Petitioner failed to obtain a majority
of the ballots cast. On December 21, 1956, the Petitioner filed ob-
119 NLRB No. 26.