Robinson Freight Lines

National Labor Relations Board - Board Decisions

Nov 16, 1955

114 N.L.R.B. 1093 (N.L.R.B. 1955)

' , ' ROBINSON FREIGHT LINES 1093
2. By interfering with, restraining, and, coercing employees in the exercise of
rights guaranteed-in Section 7 of the Act, kespondent Company has engaged in
and is -engaging in unfair labor practices within the meaning of Section 8 (a) -(1)
of the Act.
3. By contributing support to the New Orleans Joint Board of Amalgamated
Clothing Workers of America, CIO,_ Respondent Company has -engaged in and is
.engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the
Act.
4. By restraining and coercing employees in the exercise of rights guaranteed
in Section 7 of the Act, Respondent New Orleans Joint Board of Amalgamated
Clothing Workers of America, CIO, and Respondent Albert H. Bernadas have en-
gaged in and are engaging in unfair labor practices within the meaning of Section
8 (b) (1) (A) oftheAct.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
6. Respondent New Orleans Laundries, Inc., has not violated Section 8 (a) (3)
of the Act as alleged in the complaint.
7. Respondents New Orleans Joint Board of Amalgamated Clothing Workers
,of America, CIO, and Albert H. Bernadas have not violated Section 8 (b) (2)
oof the Act.
[Recommendations omitted from publication.]
Jack C. Robinson, doing business as Robinson Freight Lines'and
Chauffeurs, Teamsters, Warehousemen & Helpers Local Union
No. 621, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, AFL
Jack C. Robinson, doing business as Robinson Freight Lines and
A. J. Buckner, John Brooks, Perry Coward and Ed Carnes.
Cases Nos. 10-CA-2236 and 10-CA-2326. November 16,1955
DECISION AND ORDER
On July 25, 1955, Trial Examiner Louis Plost issued his Interme-
,d.iate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain afi'irmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
and a supporting brief.
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 Interme-
'diate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, with the following modifications and addi-
tions.
1. The Trial Examiner found that the Respondent violated Section
8 (a) (1) of the Act by making loans to certain strikers. We do not
.agree.
114 NLRB No. 162.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record shows that on October 18, 1954, the Union called a strike
which the Trial Examiner found, and we agree, was economic in ori-
gin. During the strike, O. F. Kerr, assistant to Jack C. Robinson,'
the Respondent-owner, frequently talked with various strikers in his
office, on the street, and at the home of a striker, Buford L. Ricker,
who, at the time, was employed elsewhere. Most of these conversa-
tions were at the request of the strikers. On 1 occasion, during or
after the second week of the strike, a group of 6 strikers 2 meeting at
Ricker's home decided to request a loan from Respondent. This action
was consistent with the Respondent's policy of making loans to his
employees. One of the strikers telephoned Kerr and told him that
"we wanted to borrow some money, for him to come down." Kerr
arrived at the Ricker home shortly thereafter and loaned $20 to each
of the 6 men. He advised them that "if you go back to work, you can
pay it back, take it out of your wages. If you don't, you will still owe
it to us." The loans were subsequently repaid through payroll deduc-
tions by 5 of the 6 strikers following their return to work on November
26,1954.'
Contrary to the Trial Examiner, we do not believe that the General
Counsel has proved by a preponderance of the evidence that the loans
were "not advanced as an act of benevolence . .. but was in reality
intended to breach the wall the Union had thrown around the Re-
spondent." The loans were voluntarily initiated by the strikers them-
selves at their request and the grant of them was in conformity with
the Respondent's established policy 4 Further, unlike the Trial Ex-
aminer , we do not presume a lack of "agonizing hardships" when the
loans were made, particularly in view of a history of garnishment and
of other financial difficulties on the part of several of the borrowers.
Finally, we note that the Respondent and the Union have had ami-
cable relations for more than 2 years and that there is no evidence in
the record of either unfair labor practices or of antiunion animus
during that period. Under all the circumstances and upon the entire
record, we are not persuaded that the General Counsel has sustained his
burden of proof that the Respondent's loans to the six strikers were
improperly motivated and therefore violative of Section 8 (a) (1) of
the Act.
Similarly, we do not agree with the Trial Examiner's finding that
the Respondent's letter of November 10, 1954, was "nothing more
than solicitation of strikers to abandon the strike, ignore their Union,
and return to work," and as such violative of Section 8 (a) (1) of
1 At present , Kerr is general manager.
2 Ricker, Ira , Earl , and Willard Davis, A J. Buckner , and Hoyle Waddell.
a Striker A. J Buckner applied for reinstatement before the end of the strike and was
told to report . He failed to do so.
* In fact the Trial Examiner found that the Respondent 's gift to a striker ' s wife on
another occasion was "an impulsive act of kindness, without intent to unduly influence "
ROBINSON FREIGUT'TiMES 1095
the Act. The, record shows' that the Respondent- sent the following
identical letters to the strikers, at the same time sending copies to the
Union :
This is to notify you that you have been replaced with a tem-
porary employee.
We view this strike, which has been in effect since October 18,
as an economic strike. Wei -therefore, take the position that you
have abandoned your jobs.
We wish to further notify you that unless you report available
for work by Monday, November 15 that you will be permanently
replaced. If you desire to continue as an employee of Robinson
Freight Lines will you please notify Mr. Tom Robinson, Knox-
ville Terminal Manager, by 8: 00 o'clock a. m. November 15, 1954,
as to your being available for work.
As noted above, the strike involved herein was economic in charac-
ter and the Respondent had the right to' continue operating through
the employment of replacements to take over strikers' jobs.' In our
opinion the letter stated no more than the Respondent's legal position.
It contained no threat of reprisal or promise of benefit designed to
coerce the strikers into returning to work and was not part of any
pattern of illegal opposition to the purposes of the Act. Nor was it
designed to undermine the Union or to demonstrate a desire to bargain
with the strikers as individuals, particularly since the Union was sent
copies of the letter. Under these circumstances and upon the entire
record, we do not find the Respondent's letter of November 10, 1954,
violative of the Act .6
2. The Trial Examiner found that the Respondent had discrimi-
natorily refused to reinstate upon request seven named complainants.7
We agree with the Trial Examiner's ultimate finding as to these com-
plainants but do not rely upon all his reasoning. As the Respondent did
not violate Section 8 (a) (1) of the Act, we find, contrary to the Trial
Examiner, that the economic strike herein was not converted into an
unfair labor practice strike but remained economic in character. The
strikers therefore were entitled to reinstatement only if they had not
been permanently replaced during the strikes The record shows that
16 employees went on strike and that, on the basis of payroll data,
the Respondent hired only 9 employees during the period of the strike
October 18 to December 13. As a result, seven vacancies existed at the
time the strikers applied for reinstatement. Absent evidence that
s N. L. R. B. v. MackayfRa4io cE Telegraph Co., 304 U. S. 333.
"Genesee Foundry Company, Incorporated, 109 NLRB ,1253, 1254. Blackstone Mills,
Inc., 109 NLRB 772, 773; Jordan Bus Company and Denco Bus Lines , Inc., 107 NLRB
717, 719.
' John Brooks, James Frasier, Edward B. Carnes, Perry Coward, Eugene Evans, San -
Smith and Tom Carpenter.
N. L. R. B. v. Mackay Radio & Telegraph Co-., supra.
1096 DECISIONS OF NATIONAL S;ABOR RELATIONS BOARD
they were permanently replaced during the strike, the seven complain=
ants as economic strikers were entitled to reinstatement upon request -.9
The Respondent, however, does not argue that the strikers were
permanently replaced, but contends only that it was not unreasonable
to require returning strikers to fill out written applications. We do
not agree. It is well established that strikers who are entitled to
reinstatement upon request are entitled thereto free of any discrimina-
tory condition and not as new employees.10 The record' shows that
about, 6 months prior to the strike, an Interstate Commerce Commis-
sion examiner advised the Respondent "that we should have complete
applications from any employees that were hired" and "to get them
[files] up to date." Admittedly, the Respondent applied this require-
ment to new employees but not to ' old employees currently employed.
When the seven complainants applied for work on December 13, 14,
and 15, at the end of the strike, the Respondent applied the require-
ment to them, requesting that they fill out the applications. All re-
fused to do so and several expressly interpreted the application re-
quirement as reducing them to the status of new employees. As a
result, they were not considered by the Respondent as being available
for job vacancies and consequently none was hired. In these circum-
stances, we agree with the Trial Examiner that the Respondent by
requiring the applications treated the seven economic strikers as new
employees who had forfeited any rights they may have formerly
enjoyed. Accordingly, we find that by discriminatorily refusing.to
reinstate unconditionally the seven returning complainants, the Re-
spondent violated 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, the National Labor Relations
Board hereby orders that the Respondent, Jack C. Robinson, doing
business as Robinson Freight Lines, Knoxville, Tennessee, his agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Chauffeurs, Teamsters, Warehouse-
men & Helpers Local Union No. 621, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL,
or any other labor organization, by refusing to reinstate his striking
employees who made due offer to return or by discrimination in any
other manner with respect to their hire or tenure of employment,
or any term or condition of their employment.
s California Cotton Cooperative Association , Ltd, 110 NLRB 1494, 1501.
See Ohio Ferro Alloys Corporation, 104 NLRE 542, 544, and cases cited therein, set
aside on other grounds 213 F. 2d 646 ( C. A. 6) ; Indiana Desk Company , 56 NLRB 76,
78, 79, enfd as mod 149 F 2d 987 (C. A: 7)
ROBINSON FREIGHT LINES 1097
'(-b) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named-Union or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activi-
ties for the purpose of collective bargaining or other mutual aid or•pro-
tection, and to refrain from any and all such activities, except to the
extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as au-
thorized by 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 John Brooks, James Frazier, Edward B. Carnes, Perry
Coward, and Eugene Evans immediate and"full reinstatement to their
respective former or substantially equivalent positions, without preju-
dice to their seniority and other rights and privileges previously en-
joyed, and make each of them whole 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 Re-
port entitled "The Remedy."
(b) Make whole Sam Smith and Tom Carpenter for any loss of pay
they may have suffered from the time of their offers to return to wori
and the offer of reinstatement by the Respondent, and also to main-
tain their seniority, rights, and privileges.
(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 amounts of back pay due and
the rights of employment under the terms of this Order.
(d) Post at his place of business in Knoxville, Tennessee, copies of
the notice attached to the Intermediate Report marked "Appendix." 11
Copies of said notice, to be furnished by the Regional Director for the
Tenth Region, shall, after being duly signed by the Respondent or his
representative, be posted by the Respondent immediately upon receipt
thereof and maintained by him for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to em=
ployees 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.
n ,This notice is amended by substituting for the words "The Recommendations of a
Trial Examiner" the words "A Decision and Order." In 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,"
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges the discriminatory refusal to reinstate
A. J. Buckner, Claude Hanes, and Boyd McNab in violation of Section
8 (a) (3) and (1) of the Act.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
On January 27, 1955, Chauffeurs, Teamsters, Warehousemen & Helpers Local
Union No. 621, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL, herein referred to as the Union, filed a charge in the
Tenth Regional Office of the National Labor Relations Board (Atlanta, Georgia),
herein called the Board, alleging that Robinson Freight Lines, Knoxville, Ten-
inessee, had engaged in certain unfair labor practices within the meaning of Sec-
tion 8 (a) (1), (2), and (3) of the National Labor Relations Act, as amended (61
Stat. 136), herein called the Act. On February 1, 1955, the Union filed an
amended charge in which the name of the party charged was corrected to be Jack
C. Robinson, doing business as Robinson Freight Lines. On March 9, 1955, the
Union filed a second amended charge wherein the unfair labor practices were alleged
to be violations of Section 8 (a) (1) and (3) of the Act.
On May 23, 1955, the Regional Director for the Tenth Region issued a complaint,
based on the aforesaid second amended charge, docketed as 10-CA-2236, alleging
that Jack C. Robinson, doing business as Robinson Freight Lines, herein called the
Respondent , had engaged in unfair labor practices within the meaning of Section
(8) (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, as amended.'
On June 6, the Respondent filed an answer in which he denied engaging in the
unfair labor practices as alleged.
On June 2, 1955, John Brooks and A. J. Buckner, filed individual, separate,
charges in the Board's Tenth Regional Office alleging that the Respondent had en-
gaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
The charges were docketed as 10-CA-2236 and 10-CA-2326, add #1. On the
following day, June 3, Perry Coward 2 and Ed Carnes filed similar individual, sepa-
rate charges, docketed as 10-CA-2326, add #2 and add #3. The four charging
parties were all named as discriminatees in Case No. 10-CA-2236.
On June 8, 1955, the aforesaid Regional Director issued an order consolidating
cases as to Cases Nos. 10-CA-2236 and 10-CA-2326, and issued a consolidated com-
plaint thereon. Copies of the complaint, charges, order consolidating the cases,
and a notice of hearing were duly served on all the parties.
The Respondent filed an answer to the consolidated complaint in which he denied
having engaged in any of the unfair labor practices alleged.
With respect to the unfair labor practices the complaint alleged that the Re-
spondent in violation of Section 8 (a) (1) and (3) of the Act refused to reinstate
certain strikers who had unconditionally offered to return to work.
Pursuant to notice a hearing was held before Louis Plost, the duly designated
Trial Examiner, at Knoxville, Tennessee, on June 21 and 22, 1955. The General
Counsel and the Respondent were represented by counsel, herein referred to in the
name of their principals. The parties participated in the hearing and were afforded
full opportunity to be heard, to examine and cross-examine witnesses, to introduce
evidence bearing upon the issues, to argue orally, and to file briefs and/or proposed
findings of fact and conclusions of law with the Trial Examiner.
% The complaint alleged discrimination by the Respondent against the following em-
ployees * John Brooks, A. J. Buckner, James Frazier, Claude Hanes , Sam Smith, Ed
Carnes, Perry Coward, Eugene Evans, Boyd McNab, and Tom Carpenter.
2 Coward is also referred to as Cowart in the transcript.
ROBINSON FREIGHT LINES 1099
The Respondent moved to strike from the complaint the'names of all alleged dis-
criminatees not called. The Trial Examiner reserved ruling. The motion is dis-
posed of by the findings herein. The Trial Examiner granted, without objection, a
motion by the General Counsel to conform the pleading to the proof with respect
to spelliftg, dates, and like matters. The parties did not argue orally. A date was
set for the filing of briefs, etc., with the Trial Examiner, the time being 'later ex-
tended.
On July 1, the General Counsel moved to reopen the record in order to take
the testimony of one John Brooks. The Trial Examiner granted the motion.
On July 7, the testimony of John Brooks was taken .3 Briefs have been received
from the General Counsel and the Respondent.
Upon the entire record, and from his observation of the witnesses, the Trial
Examiner^makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Jack C. Robinson , doing business as Robinson Freight Lines,
operates as a common carrier under a franchise from the Public Utilities Commission
of Tennessee . He operates only in Tennessee , carrying no freight beyond the State
lines, however as a "link in interstate commerce" the Respondent moves freight across
the, State for various interstate haulers. Freight and loaded trailers en route across
the State of Tennessee are turned over to the Respondent who then moves such
freight or loaded trailers across the State as part ofits interstate movement.
The Respondent 's annual income for the transportation of freight amounts to more
than $600,000. Of this $350 ,000 represents fees earned in moving freight across
the State as a "link" in interstate traffic.
H. THE ORGANIZATION INVOLVED
Chauffeurs, Teamsters, Warehousemen & Helpers Local Union No. 621, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers-of Amer-
ica, AFL, is a labor organization within the meaning of the Act and admits employees
of the Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
(a) The strike: The Union and the Respondent were parties to a collective-bar-
gaining labor contract effective June 21, 1952, to June 20, 1955.
In July 1954, the Union and the Respondent disagreed as to the interpretation of a
clause of the contract under which the Respondent had laid off two employees. The
matter (layoff) was handled as a grievance under the terms of the contract. As the
first step in disposing of the grievance it went to the local grievance committee, which
"deadlocked" and could not arrive at a decision. The second and final step was an
appeal to a "Bi-State" committee which also "deadlocked" -and so reported in -Septem-
ber 1954. There was no further step set up by the contract. It is clear that the
terms of the contract were fully adhered to.
On a date given only as "the first part of October" 1954, the Union struck the
Respondent's Knoxville operation, the object being to force the Respondent to accept
the Union's interpretation of the "deadlocked" grievance. This strike lasted only
7 hours, the Union being enjoined by the State chancery court.
On October 18, the Union again called the employees out on strike. As in the
first strike only the Respondent's Knoxville pickup and delivery employees were
afeced;'-however, one of the -Respondent's over-the road drivers (Tom Carpenter)
joined the strike. A total of 16 employees were involved.
A picket line was set up which was kept in effect until December 10, 1954, at which
time the strike was abandoned by the Union.
(b) The Respondent's conduct during strike: O. F. Kerr, Respondent's general
manager, who was assistant to Jack C. Robinson during the strike, testified that dur-
ing the strike, which began October 18, 1954, he held conversations with various
strikers, "four or five every day," some taking place in his office, some on the street,
and a series with a group of the strikers in the home of Buford L. Ricker, one of
their number.
Kerr testified he visited Ricker's home at the invitation of a group of the strikers,
the first meeting taking place during the second week of the strike, followed by others
within 3 or 4 days. - He also testified that :during the second meeting at Kicker's
See discussion under section M.
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7
home, 6 of the strikers were present and that he loaned $20 to each of them at that
time. According to Kerr he advanced the money because:
They told me, they said, "We haven't got money to feed our family after
today" or another day or something.
I said, "I am going to let you boys have $20 apiece as a loan." I said, "I
will be ashamed to offer an able bodied man charity, and besides we have got
no money to give away, but I will loan you $20. If you go back to work, you
can pay it back, take it out of your wages. If you don't you will still owe it to
us." And there was no form of a gift, no form of anything else. It was purely
a loan.
As to the ownership of the money he loaned the six strikers, Kerr testified:
. If I said the money I loaned any of the men was money of my own, it
was in my pocket at that time, and there could be a dollar, or something like
that, here and there, but that is as near to the letter as I can explain it, because
I like to carry a little money in my pocket all times and I maybe I used some
of mine. I am pretty sure I have.
Kerr testified (his testimony being corroborated by the Respondent's records)
that 5 of the 6 men to whom he advanced the money returned to work before the
strike was called off by the Union. He further testified:
Did any of these six ask to go back to work? They didn't ask me. They
said they wanted to go to work. "I would like to go to work," if they thought
they could. I told them at all times the jobs were open to them the same as
anybody else.
Kerr further testified that after the men returned to work he was repaid by payroll
deductions from their earnings.
Jack C. Robinson testified that he "imagined" Kerr himself had instructed the
bookkeeper to make the deductions as Kerr had "full authority" to do so.
Ira Davis testified that he went out on strike October 18; that during the strike he
was at Ricker's home only once; that while there, after discussion with his brother
Earl Davis 'and strikers Arlie Buckner and Buford Ricker, he left the house, went to
a phone booth "about a half block away," telephoned Kerr and "told him we wanted
to borrow some money, for him to come down"; that Kerr arrived within 20 or 30
minutes; and that Kerr loaned $20 to each of the 6 strikers present. Davis testified:
He handed the money-he didn't just directly hand it to me. There was five
or six of us in the room there and I don't know who he handed it to, but anyhow
he handed it on over to me.
Davis then admitted that the money was distributed by Ricker to whom he saw
Kerr hand it. He testified he returned to work November 26. The Respondent's
records, admitted in evidence, show that with the exception of Arlie Buckner all
those receiving the money from Kerr returned to work November 26. As found
herein the strike ended December 10.
Davis testified further that he and his brother borrowed money again from Robinson
after they returned to work and "put up his [the brother's] car for security."
With respect to the latter loan, Robinson testified:
Q. All right. When did you make this loan? Was it during the strike?
A. I think so. I loaned them several times and I think one of the times was
during the strike.
The loans to the Davises have been repaid.
On November'10, 1954, the Respondent sent the following identical letters to the
strikers , at the same time sending copies to the Union:
November 10, 1954.
This is to notify you that you have been replaced with a temporary employee.
We view this strike, which has been in effect since October 18, as an economic
strike. We, therefore, take the position that you have abandoned your jobs.
We wish to further notify you that unless you report available for work by
Monday, November 15 that you will be permanently replaced. If you desire to
continue as an employee of Robinson Freight Lines will you please notify Mr.
Tom Robinson, Knoxville Terminal Manager, by 8:00 o'clock a. in. November
15, 1954, as to your being available for work.
Robert McGhee testified that he is general manager of a motor express company in
Knoxville; that on October 18, 1954 , he employed Buford Ricker ; that Ricker worked
ROBINSON FREIGHT -LINES ^ 1101
for his company from October 18, through 3,1 and, from November 8 through 13; and
that Ricker worked full time at $1'.70 per hour.
lack C. Robinson testified that during the course of the strike Ricker 's wife called
at his home and told him that one,of the strikers "didn't have any food at all" and
that "I gave her $5 and told her- to go over 'and buy them some groceries, and not
even tell them where the money came from."
(c) The strikers offer to return: Eugene Evans testified he went out on strike
October 18, 1954; that on Friday, December 10, the Union's representatives informed
him the strike was ended and told him to report to- the Respondent for work on
Monday, December 13; that- on December 13 he reported to Thomas Robinson; the
Respondent's terminal manager, whom he told "I am ready to go to work' ; that the
following colloquy then took place:
He told me that I had been temporarily replaced, that I could fill out a new
application for employment and when he needed me that he would call- me.
Q. Did you fill out the application?
A. I didn't.
Q. Did you tell him anything?
A. I told him that I had never filled out an application, that I didn't feel like
I should fill out a new application as a new man, I felt like I was still employed
by Robinson Freight Lines, therefore, I didn't think it was necessary to fill,out
an application as a new man.
,Evans refused'the application and left. Outside the room he met strikers Edward
B. Carnes and Tom Carpenter, who were also returning to report, and went back
with them acting as their spokesman.
Edward B. Carnes (10-CA-2326) testified that he was one of the strikers; that
he was told by the union officials to report to the Respondent for work on December
13; that he, together with Tom Carpenter, another striker, called on Thomas Robinson,
going into the office with Evans who said to Robinson, "I am ready to go to work,"
to which Carnes added, "I am too. I am ready to go to work"; that Robinson handed
him an application for employment and told him to fill it out; that he refused to
accept the application telling Robinson "we done filled' that application' ; that he
then left and has not made further application to the Respondent.
Tom Carpenter, named as having applied for reinstatement together with Evans
and Carnes, did not testify. The Respondent admitted that Carpenter was one of
the strikers. Jack C. Robinson testified credibly and without contradiction that Car-
penter was returned to work by the Respondent some 2 months prior to the hearing.
Perry Coward, one of the strikers (10-CA-2326), testified he was instructed by
the union officials to report back to work on December 13, that he reported to
Thomas Robinson, striking employee James Frazier being with him; that when he
spoke to Robinson:
I just told him I was ready to go back to work, and he said, "Fill out application
and I will call you when I need you."
Q. You told him what?
A. That I was ready to go back to work.
Q_ Did you fill out an application?
A. No, sir.
Q. 'Did you tell him that you were not going to fill out an application?
A. No, sir.
Q. What did you do, just walk out?
A. Just walked out.
A. J. Buckner (lO-CA-2326) testified he went out on strike October 18; that on
December 13 he reported to Thomas' Robinson for employment. Buckner testified
as follows:
Q. What did you say to Mr. Robinson and what did he say to you?
A. Well, I asked him about going to work. He said, "Fill out a new appli-
cation and we will call you,"
Q. What did you-say to, him?
A. I just walked out.
Buckner was one of the group to whom Kerr advanced $20 each during the strike
as herein found. He admitted that prior to the'strike he applied for reinstatement
and was told to report but failed to do so. Buckner testified:
Q. (By Mr. Thomson.) Mr. Buckner, do you remember prior to the strike
coming in and talking with management of Robinson Freight Lines and filling
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out an application and stating that you would return to work? Do you remem-
ber that occasion?
A. Yes, sir.
Q. And then on the next day when you were supposed to return to work you
didn't show up?
A. Yes, sir. [Emphasis supplied.]
Sam Smith testified that he was one of the strikers, had been told to report to
work on December 13 by the union officials, reported to Thomas Robinson who
told him he "would have to fill out a new application" and also that he had been tem-
porarily replaced and would be recalled when needed, that he did not fill out the
application.
Smith further testified that some 8 weeks before the hearing he was notified by the
Union's business agent to report to the Respondent for work and that he is now em-
ployed by the Respondent. The record shows that Smith was reinstated by the Re-
spondent May 18, 1955, but had been offered work earlier which he did not accept
at the time because of an injury.
John Brooks (10-CA-2326). As hereinbefore stated, after the close of the hear-
ing, the Trial Examiner granted the General Counsel's "Motion to Reopen the Hear-
ing" in order to take the testimony of John Brooks. Brooks, admitted to be one of
the strikers, was named in the complaint in 10-CA-2236. He also filed an individual
charge, 10-CA-2326. The hearing was reopened July 7.
The Respondent moved to dismiss the General Counsel's motion "for lack of
jurisdiction over the subject matter under Federal Rule 4 12 (b)," and further moved
to "nullify the action of the Trial Examiner in granting the motion to reopen the hear-
ing under Federal Rule 60 (b)." The Trial Examiner denied the motions.
Brooks testified that on December 14, 1954, he reported to Thomas Robinson
and: I
I said I was reporting for work and he said I'd have to fill out a new-fill out an
application. And I said "No, thanks."
Robinson admitted the above incident to be as Brooks testified.
Thomas J. Robinson, the Respondent's terminal manager, testified that during
December 13, 14, and 15, the strikers came to him singly or in groups, that when in
a group, one acted as spokesman, stating that they were ready to go back to work
and that "I would inform them I would have to have an application and each that
came in refused to fill out an application." He further testified that the Union did not
request reinstatement for the men and that none of the applicants applied a second
time.
Robinson testified that taking written application for employment was a new policy
at the time and that casual employees were not required to fill applications. He testi-
fied:
Q. Did all of the employees you hired during this time [prior to the strike]
fill out the application?
A. No, they didn't. Taking an application and investigating an employee
or a prospective employee was a policy that we started not too awful long ago.
I really don't think at that particular time we had over three or four employees
that had filled out an application prior to them being employed by us.
Q. At the time of the strike there were only three or four applications on
file?
A. That is right, generally speaking. I won't say that definitely, but I think
that could be about right.
Jack C. Robinson testified that prior to November 10,6 he instructed Thomas
Robinson to obtain written applications from all the strikers who might apply for re-
employment, that about half the men on strike had never been required to fill appli-
cations prior to the strike; that the reason the Respondent decided to require written
applications from those seeking employment was because an examiner of the Inter-
state Commerce Commission had informed him that such written applications were
required to be kept on file by all common carriers under ICC jurisdiction; that some-
time in February or March 1954 the Respondent began to build a file of such appli-
cations requiring that all new applicants file them but did not require those men
already in its employ to fill such application forms. Robinson testified:
4 Rules of Civil Procedure for the District Courts of the United States.
n The date of the Respondent 's letters to its striking employees.
ROBINSON- FREIGHT LINES, 1-103
TRIAL EXAMINER: Those men that were already working for you, you. didn't
ask them to make any application?
The WimlEss: That's right.
T'RIAL EXAMINER : But anyone who, started after that time you did?
The WITNESS: That's right.
Robinson also testified:
But for city employees that were staying within the city, we still didn't
have to keep a permanent file on them. But if a road man made one trip on
the road, we had to have a file on him and a physical examination.
TRIM.. EXAMINER: Did you so notify your employees that this had to be
done?
The WITNESS: We told our-we told Mr. Tom Robinson in Knoxville. Of
course, Frank Kerr was in on the conversation at the time of the examination
by the Interstate Commerce Commission.
Conclusions
As to (a) The strike: The record is clear that the strikes was caused by a
disagreement over the interpretation of a valid collective-bargaining contract which
set up a method for the handling of grievances, a grievance being filed as a result of
the dispute and handled according to the contract, all the steps provided for being
taken and resulting in a "deadlock" by the committees provided for in the contract.
Under these circumstances it cannot be said -that the Respondent in any way
violated the Act with respect to the matter (layoff of two employees) giving rise
to the "deadlock"; nor did the Respondent violate the Act in refusing to accede to
the Union's demand that he accept its interpretation after the processes set up in
the contract between the Union and the Respondent failed to establish the Union's
contention.
Clearly at the beginning of the strike the Respondent had not engaged in any
unfair labor practices within the meaning of the Act and the Union's strike was an
economic strike designed to force its will on the Respondent by means of economic
pressure.
The Respondent's employees called out by the Union were economic strikers
entitled only to the rights of, and subject to the disabilities of, economic strikers.
The Trial Examiner on the entire record therefore finds that the Union's strike
against the Respondent , as herein discussed, began as an economic strike and on
October 18, 1954, those of the Respondent's employees who joined in the strike
were at that time economic strikers.
As to (b) The Respondent's conduct during strike: In the opinion of the Trial
Examiner one would be naive indeed to accept the Respondent's contention that
Kerr's action in giving, or loaning, money to the strikers was intended as an act
of pure altruism.
Kerr met with various strikers daily, he visited with a group of them at the home
of a striker several times, he wasted no time ,in going to this striker 's home on a
-request to loan money to men who by their action had put his employer in a position,
where, as Kerr put it "We wanted some work done but I don't believe that we had
any men working at that time." The fact that the loans were made within the
second week of the strike goes to dispell any agonizing hardships of the strikers as
the motivating factor for making them. The fact that meetings were held in the
home of a striker who was employed elsewhere, at full time and at full union wages,
causes doubt as to this individual's real motive in the use of his home. The fact
that all those receiving the money signed applications for employment and all, save
one, returned to work before the strike ended compels the conclusion that the money
(which the record shows to have been mainly that of Respondent and which was
repaid by payroll deductions) was not advanced as an act of benevolence toward
men engaged in hindering the Respondent 's business operations but was in reality
intended to breach the wall the Union had thrown around the Respondent Y
Although there were two strikes, both resulting from the same cause, this report is
based on the events surrounding the strike beginning October 18, 1954.
7 The Trial Examiner is inclined to accept at face value the testimony of Jack C.
Robinson to the effect that during the strike he gave $5 to the wife of one of the strikers
as an anonymous contribution to a striker's family in need. On the record, and from
his observation of the witnesses on the stand, the Trial Examiner believes this to have
been an impulsive act of kindness, without intent to unduly influence.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent's letter 8 to the strikers under date of November 10, in view of
all the circumstances herein, including Kerr's conduct as herein, found, is nothing
more than solicitation of strikers to abandon the strike, ignore their Union, and
return to work. Such solicitation has long been held to be violative of the Act .9
The Trial Examiner is convinced that the Respondent's conduct, in advancing
money to certain strikers and in addressing letters to strikers, as herein found, was
manifestly designed to deplete the ranks of his striking employees and thereby frus-
trate them. This unwarranted intrusion into the affairs of his striking employees
served to prolong the strike and consequently that which had begun as an economic
strike became by the Respondent's acts an unfair labor practice strike, becoming so
entirely because of the Respondent's illegal action.
The Trial Examiner finds that by the Respondent's conduct, hereinabove set out,
the strike became an unfair labor practice strike and thereafter all the strikers were
entitled to the rights of unfair labor practice strikers and the Respondent was subject
to the law appertaining to unfair labor practice strikers.
The Trial Examiner therefore finds that by Kerr's conduct and the letters of
November 10, the Respondent engaged in conduct violative of Section 8 (a) (1) of
the Act. 10
As to (c) The strikers' offer to return: There is no dispute that the following named
striking employees of the Respondent made application to return to work between
December 13 through 15, 1954:
John Brooks James Frazier Edward B. Carnes Eugene Evans
A. J. Buckner Sam Smith Perry Coward Tom Carpenter
No matter how phrased, individually or as stated by a group spokesman, the
offers to return were and undoubtedly were understood to be unconditional offers
to return to work. However, a condition was imposed to the return of the strikers,
not by them or their Union, which did not request their reemployment by the Re-
spondent but did instruct them to return, but it was imposed by the Respondent.
The Respondent tendered each of those offering to return to work a form applica-
tion for employment and instructed them to fill it out before they could be con-
sidered. Each man refused and left immediately, some without speaking.
It is clear that applications in written form had not been required of at least one-
half of the strikers when they were first employed, it is equally clear that at the time
(before the strike) the Respondent decided to add written applications to its file
on employees those already in his employ were not required to fill such applica-
tions.
The Respondent's contention that form applications for employment as part of
its file on each employee was decided upon in early 1954 because he had been ad-
vised, apparently unofficially, by an ICC examiner that this was a practice required
of all common carriers under ICC jurisdiction is lame when it is recalled that
Jack C. Robinson testified "for city employees that were staying in the city, we still
didn't have to keep a permanent file on them."
With one exception the strikers were "pick up and delivery" or warehouse workers
employed in Knoxville.
The Trial Examiner is persuaded that by requiring an application for employ-
ment from the returning strikers the Respondent intended to emphasize that in his
view they were new employees and had forfeited any rights they may have formerly
enjoyed and that the returning employees so understood. By his action the Re-
spondent failed to treat the returning strikers as his employees and denied them
the rights due them as unfair labor practice strikers. Among the rights of the
strikers (who had become unfair labor practice strikers because of the Respondent's
action) was the right to unconditional reinstatement on an unconditional offer to re-
turn. Furthermore there is no question but that when a strike is initially under-
taken for economic reasons but is prolonged by reason of the employer's intervening
unfair labor practices, the employer is in the same position he would have been
8 Respondent's Exhibit No 3
8 Old Town Shoe Company , 91 NLRB 240 ; Anchor Rome Mills, Inc, 86 NLRB 1120;
Olin Industries, 86 NLRB 203 ; Cincinnati Steel Castings Company , 86 NLRB 592.
10 Black Diamond Steamship Corporation v N L R. B . 94 F . 2d 875 (C. A. 2), cert
denied 304 U . S. 579; N. L. R. B . v. Remington Rand, Inc., 94 F 2d 886 (C A. 2), cert.
denied 304 U. S. 576; Dalton Telephone Company , 82 NLRB 1001 ; E A. Laboratories,
Inc, 80 NLRB 625; Lettie Lee, Inc., 45 NLRB 448 , entd 140 F 2d 243 ( C A 9) , Manville
Jenckes Corporation , 30 NLRB 382
ROBINSON `FBtIG1 n-I T1 ES ``' 1105 '
in had his unfair labor practice caused the strike in the first place and is bound-to
reinstate all' strikers, and discharge all those hired to replace them during the strike."
The Trial Examiner therefore finds that by refusing to reinstate the strikers applying'
for reemployment as herein found the Respondent engaged. in unfair labor practices
within the meaning of The Act more particularly Section 8 (a) (3) thereofaa
It is not disputed that of those named as discriminatees in the complaint Tom
Carpenter was recalled to work on some date after December 15, not disclosed- by
the record; that Sam Smith was recalled and went to work May 18,- 1955, the recall
being made some time before the return.
A. J. Buckner (10-CA-2326) was one of those accepting $20 from Kerr as herein
found, he admitted that prior to the end of the strike he came to the Respondent's
place of business, filled out an application for employment, and stated he would re-
turn to work'and that he was "supposed to return the following day" but did not
do so. As found herein he again applied on December 13,- "Walking out°' without
comment when tendered an application.
The Trial Examiner is of the opinion that at the time Buckner signed the Respond-
ent's application before the strike ended, he had made an unconditional offer to return.
The fact that his loan from Kerr may have affected his decision is of no consequence
as not'the reason for the act but the act itself is controlling. In the opinion of the
Trial Examiner when, upon Buckner's application, the Respondent told him to return
the next day for work, the Respondent's obligation to Buckner was ended.
The Trial Examiner will therefore recommend that the complaint be dismissed
as to A. J. Buckner. ,
The record is completely silent as to Claude Hanes ,and Boyd McNab , named as
discriminatees in the complaint, and the Trial Examiner will therefore recommend
that the complaint be dismissed as to Hanes and McNab.
Concluding Findings
Upon the entire record, the evidence considered as a whole, and his observatiorr
of the witnesses, the Trial Examiner finds that by meeting with some of his em-
ployees on strike and advancing them money during the strike, and by letters ad-
dressed to stnkers on November 10, 1954, all as herein found, the Respondent has
interfered with, restrained, and coerced his employees in the exercise of rights,
guaranteed in Section 7 of the Act, more particularly Section 8 (a) (1) thereof.
The Trial Examiner further finds that by refusing to reinstate John Brooks, James.
Frazier, Sam Smith, Edward B. Carnes, Perry Coward, Eugene Evans, and Tom
Carpenter upon their offers to return to work on or about December-13, 14, or 15,,
1954, the Respondent had discouraged membership in a labor organization by dis-
crimination in regard to the hire and tenure of his employees in violation of Section
8 (a) (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The Respondent's activities set forth in section III, above, occurring in connection-
with the Respondent's operations 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.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices
it will be recommended that he cease and desist therefrom and that he take
affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent has discriminated in regard to the hire and ten--
ure of employment of John Brooks, James Frazier, Sam Smith, Edward B. Carnes,
Perry Coward, Eugene Evans, and Tom Carpenter because of their membership in and
activities on behalf of the Union, it will therefore be recommended that the Respondent
offer to all of them immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other rights and privileges,13-
and that each be made whole for any loss of pay he may have suffered by reason of the
discrimination against him , by payment to each of them of a sum of money
equal to that which each would normally have earned as wages from the date of the
UN. L. R.B. v. Remington Rand, Inc., 130 F. 2d 919 (C. A. 2), cited in N. L. R. B. V.
Crosby Chemicals, Inc., 188 F. 2d 91 (C. A. 5).,
n gee : Ohio Ferro Alloys Corporation, 104 NLRB 542.
73 As found herein Tom Carpenter and Sam Smith have been reinstated . Back' pay--
should be only to date of their recall.
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discrimination to the date of the Respondent's offer of reinstatement, less his net
earnings during such period.14 The back pay shall be computed in the mariner
established by the Board 15 and the Respondent shall make available to, the Board
his payroll and other records to facilitate the checking of amounts due.
The Respondent; if necessary, shall discharge any employee hired after December
13, 1954, in order to make place for any or all of the above-named discriminatees.16
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, Jack C. Robinson, doing business as Robinson Freight Lines,
is engaged in commerce within the meaning of the Act, and his operations meet the
standards set by the Board for jurisdictional purposes.
2. Chauffeurs, Teamsters, Warehousemen & Helpers Local Union No. 621,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL, is a labor organization within the meaning of the Act.
3. By discriminating in the hire and tenure of employment of John Brooks, James
Frazier, Sam Smith, Edward B. Carnes, Perry Coward, Eugene Evans, and Tom
Carpenter, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
4. By such discrimination and by interfering with, restraining, and coercing em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act, the Re-
spondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices • affecting' com-
merce within the meaning of Section 2 (6) and (7) of the Act.
The Respondent has not engaged in unfair labor practices with respect to A. J.
Buckner.
[Recommendations omitted from publication.]
14 Crossett Lumber Company, 8 NLRB 440
'5 F W. Woolworth Company, 90 NLRB 118.
14 The Respondent contends that the strike remained at all times an economic'strike.
Assuming arguendo this to be so still the result will be the same. It has been found that
three of the strikers are not entitled to iemstatement, all the other economic strikers are
entitled to their jobs on application of not pieviously replaced'
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 Labor Management
Relations Act, I hereby notify my employees that:
I WILL NOT discourage membership in Chauffeurs, Teamsters, Warehouse-
men & Helpers Local Union No. 621, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL, or any labor or-
ganization, by discriminating in regard to the hire or tenure of employment or
any term or condition of employment of any employees by refusing to reinstate
those of my striking employees who made an offer to return to work on or about
December 13, 1954, and had not been offered employment prior thereto.
I WILL NOT in any other manner interfere with, restrain, or coerce my em-
ployees 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 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 National Labor Rela-
tions Act.
I WILL offer John Brooks, Perry Coward, James Frazier, Eugene Evans, and
Edward B. Carnes immediate and full reinstatement to their former or sub-
stantially equivalent positions without prejudice to their seniority or other' rights
and privileges.
VANETTE HOSIERY MILLS 1107
I-wiu make whole said employees , and also Sam Smith and-Tom Carpenter,
for any loss of pay they may have suffered by reason of discrimination ' against
them.
All my employees are free to become or remain members of the above -named Union
or any other labor organization . I will not discriminate in regard to hire or tenure
of employment or any term or condition of employment against any , employee be-
cause of membership in or activity on behalf of any such organization.
TACK C. ROBINSON, DOING BUSINESS AS
ROBINSON FREIGHT LINES,
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.
Vanette ., Hosiery Mills and American Federation of Hosiery
Workers, AFL. Case No. 16-CA-476. November 16, 1955 '
DECISION AND ORDER
On June 13, 1955, Trial Examiner Thomas N. Kessel 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 the Respondent cease and
desist therefrom and take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter,
the Respondent filed exceptions to the Intermediate Report and a
supporting brief.
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 Interme-
diate Report, the exceptions and brief,- and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Upon the basis of 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 the Respondent,
Nanette Hosiery Mills, Dallas, Texas, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from
(a) Refusing to bargain collectively with American Federation
of Hosiery Workers, AFL; as the exclusive representative of all of
the Respondent's production and maintenance employees with re-
spect to rates of pay, wages, hours of employment, and other -terms
and conditions of employment.
114 NLRB No. 164.
387644-56--vol. 114-71