Stafford Operating Co.

National Labor Relations Board - Board Decisions

Nov 1, 1951

96 N.L.R.B. 1217 (N.L.R.B. 1951)

HELLIGE, INC. 1217
to the conduct of this election. We shall therefore adopt the Regional
Director's recommendation and hereby overrule the objections filed by
the Intervenor. As a majority of the valid votes has been cast for
the Petitioner, we shall certify that union as the bargaining repre-
sentative of the employees in the unit found appropriate.
Certification of Representatives
IT Is HEREBY CERTIFIED that Local 463, International Union of
Electrical, Radio and Machine Workers, CIO, has been designated and
selected by a majority of all production and maintenance employees
of Hellige, Inc., Long Island City, New York, plant, excluding office
clerical employees, professional employees, guards, and all super-
visors as defined in the Act, as their representative for purposes of
collective bargaining and that pursuant to Section 9 (a) of the Act,
as amended, that organization is the exclusive representative of all
such employees for the purposes of collective bargaining with respect
to rates of pay, wages, hours of employment, and other conditions of
employment.
MEMBER REYNOLDS took no part in the consideration of the above
Supplemental Decision and Certification of Representatives.
CIIARLES I. STAFFORD, ALVA STAFFORD, JAMES L . STAFFORD, CHARLES
RAYMOND STAFFORD AND ROBERT E. STAFFORD, DOING BUSINESS AS
STAFFORD OPERATING COMPANY and INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMER-
ICA, GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS LOCAL No.
245, A. F. L. Case No. 17-CA23. November 1, 1951
Decision and Order
On May 21, 1951, Trial Examiner Eugene F. Frey issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices in violation of Section 8 (a) (1), (3), and (5) of the Act,
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondents filed excep-
tions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
'Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this proceeding to a three -member panel [ Chairman Herzog and
Members Reynolds and Murdock].
9 6 NLRB No. 181.
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rulings are hereby affirmed 2 The Board has considered the In-
termediate Report, the Respondents' exceptions and brief, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the exceptions and
modifications set forth below.
1. We agree with the Trial Examiner's conclusion that the Respond-
ents discharged 12 employees on July 31, 1950, in violation of Section
8 (a) (3) and (1) of the Act .3 We do not rely, however, upon the
Trial Examiner's finding that the, Respondents' knowledge of the dis-
chargees' union membership was in fact communicated by Gower and
Pheiffer on the morning of July 31 to Ray Stafford, one of the Re-
spondents' partners. Although it is likely that this occurred, the
evidence does not support a flat finding to this effect. The evidence
does establish, however, that on the morning in question Gower and
Pheiffer told the Respondents of the employees' meeting that morn-
ing and of their concerted disapproval of the proposed cut in pay.
Whether or not the Respondents then, or later that clay, learned that
unionization was part of their employees' concerted activity, we be-
believe that the circumstances surrounding the discharges demonstrate
that the employees were discharged for that concerted activity.
As more fully set forth in the Intermediate Report, the pertinent
facts are as follows : For several weeks before July 31, 1950, because
of slack business the Respondents considered the possibility of laying
off some of their newer drivers, so that the more senior men would earn
more money. Then, on July 29, the drivers learned of an impending
pay cut which was to take effect on July 31. During the morning of
the latter date, all of the drivers and helpers, except Shupe, con-
gregated in front of the Respondents' garage to discuss the proposed
pay cut, at which time there was discussion as to the desirability of
2 The Intermediate Report contains certain misstatements of fact none of which affects
the Trial Examiner ' s ultimate conclusions, or our concurrence therein . Accordingly, we
note the following corrections :( 1) The Trial Examiner found that employees Gower and
Pheiffer were "admittedly" antiunion . The record shows that Gower did admit that he
would rather quit his job than join the Union . Pheiffer made no similar admission. (2)
Contrary to the Trial Examiner's statement , it appears from the record that Melvin Bell
was not present at the meeting of the drivers convened at the Respondents ' request on
August 8, 1950.
We have carefully considered the entire record and find that the Respondents ' allegations
that the Trial Examiner was biased are without merit . Accordingly , we hereby overrule
their exception in this regard.
8In arriving at his conclusion , the Trial Examiner found that the Respondents "failed
to sustain the burden of adducing evidence adequate to support the conclusion that the
layoffs in question were due to enconomic or financial reasons ." The Respondents ex-
cepted to this finding on the ground that the Trial Examiner placed the burden of
proof upon them. It is well settled that the burden of proving the commission of unfair
labor practices rests at all times upon the General Counsel. We have carefully examined
the Intermediate Report and the entire record herein , and it is clear that the burden
referred to by the Trial Examiner was the •burden of going forward with adequate evi-
dence to rebut the prima facie case established by the General Counsel . See N. L. R. B.
v. Somerset Shoe Company, 111 F. 2d 681 , 687 (C . A. 1) ; E. B. Law and Son, 92 NLRB 826.
STAFFORD OPERATING COMPANY 1219
joining the Union. Two of the employees, Gower and Pheiffer, who
did not want union support, decided to talk personally to the Respond-
ents about the pay cut and left the group to see Ray Stafford. Staf-
ford told them there would be no pay cut for the time being. About
one-half hour after Gower and Pheiffer left, but before they returned,
the remaining 11 employees went to the union hall where all but 1 of
them signed union-authorization cards. Upon their return to the
garage in groups of 2's and 3's, all of them were told by Ray Stafford
that they were discharged because of slack business 4 Gower and
Pheiffer were not discharged.
On the record before us, there can be little doubt that the Respond-
ents had knowledge of, or believed that their employees were engaging
in, concerted activities, probably had joined the Union and that such
knowledge or belief motivated the discharge of these employees. It
is admitted that the Respondents were advised that their employees
had met in front of the garage on the morning of July 31 to discuss
the proposed pay cut. Moreover, in a place of business so limited in
size as was the Respondents' garage, it is reasonable to assume that the
Respondents were aware that this meeting of 11 of its 14 employees
lasted about 2 hours, that these employees departed from the garage
on masse, and that they absented themselves from the garage for the
greater part of the afternoon. When, in addition, we consider the
precipitate nature of the decision to effect a layoff, coinciding with the
employees' concerted and union activities; the wholesale layoff of 12
employees, 10 of whom had signed union cards that afternoon, im-
mediately upon their return from the union hall; and the retention in
the Respondents' employ of only Gower and Pheiffer, who were not the
senior employees and who not only informed the Respondents of the
employees' concerted action but who were opposed to their fellow
employees' union activity, the conclusion that the Respondents had
knowledge of, or believe that their employees were engaging in con-
certed activities, and that such knowledge or belief motivated the dis-
charges is immediately apparent.
The Respondent's defenses that the discharges were based upon busi-
ness considerations have been carefully analyzed by the Trial Ex-
aminer and, in his findings fully set forth in the Intermediate Report,
have been rejected by him. We adopt these findings. Accordingly,
absent evidence that the mass layoff was for economic reasons, we find
that the timing of the discharges, when coupled with the extreme
disparate selection of employees for layoff, clearly manifested the
Respondents' discriminatory motive in ridding themselves of em-
* Shupe, who was not present at the group discussion during the morning and did
not go to the union hall , was also discharged by Ray Stafford when he came to work
that afternoon , upon the Respondents ' apparent belief, as found by the Trial Examiner,
that he had also engaged in the concerted activities . Shupe, as the Trial Examiner
found, had applied for membership in the Union several months earlier.
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees because of their knowledge or belief that they were engaging
in concerted activities."
2. We do not agree with the Trial Examiner's recommendation that
the Respondents should offer reinstatement to Gill, Hoy, Frank Smith,
and Wallace. These employees, together with three others, were
present at a meeting with Ray Stafford and R. A. Ellis, Respondents'
attorney, held at the garage on August 8, 1950. At this meeting
Stafford made unconditional offers of reinstatement to dischargees
I'ettet, Bee, and Kelly Smith who refused, preferring to stay with
the other union men until the dispute concerning the layoff and the
Union's request for a contract was settled.° The basis for the Trial
Examiner's recommended order of reinstatement is that Gill, Hoy;
Frank Smith, and Wallace were not specifically offered jobs. In view
of the nature of this meeting and the concerted determination ex-
pressed by those refusing reinstatement, we believe that it would have
been futile for the Respondents to have continued making similar
offers to the less senior drivers. That the Respondents' failure to
make specific offers to these other employees was not discriminatory
is demonstrated by the fact that shortly after the meeting Stafford
telephoned Bell , who was not present at the meeting, to offer him rein-
statement, advising him that all the other drivers refused similar
offers.'
^. The Trial Examiner found that the Respondents violated Section
8 (a) (1) of the Act by interrogating Melvin Bell and by the vilifica-
tion and interrogation of Alva Gill.
After the August 8 meeting, Ray Stafford telephoned Bell, asking
him if he wished to return to work. He then inquired about Bell's
union affiliation, informing him that the other union drivers had con-
certedly refused to return to work. Because of the question about
Bell's union affiliation, the Trial Examiner made his finding of Sec-
tion 8 (a) (1) violation. It appears , however, that the purpose of this
question was to advise Bell that if he accepted the Respondents' offer
he would be acting contrary to the concerted attitude of his fellow
union drivers. Under these circumstances, in our opinion, the inter-
5 7familton-Brown Shoe Company v . N. L. R. B, 104 F . 2d 49 , 53 (C. A. 8 ) ; N L. R B.
v. Watson Line, Inc., 122 F. 2d 809, 812 (C A..3) ; Carolina Mills, Inc, 92 NLRB 1141.
" While we do not agree with the Trial Examiner ' s rejection of the Respondents' offer
of proof that Pheiffer, who was not discharged , was thicatened with violence while on
a trip , the record shows that the ruling has been cured We have regaided the proffered
evidence as part of the congeries of facts and have given it the same force and effect
as if it had been established by competent testimony . The record shows that during the
meeting of August 8, Pheiffer walked into the office and complained to Kelly Smith
because the latter had followed Pheiffer ' s truck. Kell% Smith admitted that he had
followed Pheiffer, but denied that any violence ensued We find it unnecessary to resolve
this conflict in testimony , for even assuming Kelly Smith and some other employees
engaged in violence , the Respondents condoned any misconduct by offering Kelly Smith
and others reinstatement See N L R. B. v Mt Clemens Pottery Company , 147 F 2d 262,
267 N L R B v . F. A. Laboratories, Inc, 188 F. 2d 885.
Stiles was not present at the August 8 meeting and was never offered reinstatement.
STAFFORD OPERATING COMPANY 1221
rogation merely discloses an attempt on the part of the Respondents
to be fair in their offer of reinstatement. Accordingly, we do not find
a violation of the Act in this incident.
As to Alva Gill, the Trial Examiner found that Stafford' s use of
profanity directed at Gill was violative of the Act. We disagree, as
Stafford's remarks did not contain any threat of reprisal or force or
promise of benefit." We also do not adopt the Trial Examiner's finding
that Ray Stafford's inquiry of Bell as to whether or not he was about to
get "the union matter straightened out," was violative of the Act. In
view of Gill's position as employee spokesman on behalf of the Union,,
we are of the opinion that Stafford's action in this regard was not
violative of the Act.
4. We agree with the Trial Examiner's finding that the Respondent
violated Section 8 (a) (5) and (1) of the Act by refusing to bargain
with the Union since August 3, 1950, and by granting unilateral pay
increases since that date. In excepting to his findings, the Respondents
contend that they were not required to deal with the Union because the
Union's status as bargaining representative for a majority of the
drivers and helpers was dissipated as a result of the July 31 layoff.
Because the alleged loss of majority was caused by the Respondents"
unfair labor practices, there is no merit in this contention.9
The Remedy
We adopt the recommendations of the Trial Examiner contained in
the section of the Intermediate Report entitled "The Remedy," with
the following modifications :
Contrary to the Trial Examiner, we have found that Gill, Hoy,,
Wallace, and Frank Smith, in addition to Carver, Pettet, Bee, and
Kelly Smith, ref used the Respondents' reinstatement offer of August
8, 1950. The concerted refusal to accept reinstatement placed these
discharged employees in the position of employees who go on strike
because of an employer's unfair labor practices and who are entitled
to reinstatement upon application.10 The Respondents therefore need
not repeat the offer of reinstatement to them ll We shall, however,
order that upon application of Gill, by, Wallace, Frank Smith,
Pettet, and Bee, for reinstatement, the Respondents offer them rein-
statement to their former or substantially equivalent positions, with-
8 E. A. Laboratories , Inc, 80 NLRB 622. 628; Sunnuiside Winery, et al., 77 NLRB 93, 90
9 Franks Bros Company v. N. L R B., 321 U. S 702
10 Coca Cola Bottling Company of St. Louis, 95 NLRB 284, Atlanta Metallic Casket
Company, 91 NLRB 1225.
"With respect to Kelly Smith and Stiles . we agree with the Trial Examiner that the
Respondents should offer them reinstatement Although Kelly Smith refused reinstate-
ment on August 8, lie later applied for his job but was refused reinstatement . Stiles
was not present at the August 8 meeting and was not offered reinstatement at any
other time Caner is not entitled to reinstatement because, at the hearing, he stated
that he did not desire employment with the Re pondents.
9 7 41 76--52-vol 96-78
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out prejudice to their seniority or other rights and privileges; we shall
also order the Respondent to dismiss, if necessary, any persons hired
on or after August 8, 1950, to provide places for these dinployees.
As recommended by the Trial Examiner, the discharged employees
are also entitled to back pay. Accordingly, we shall order that the
Respondents make each of the dischargees, including each previously
reinstated or offered reinstatement, whole for any loss of pay he may
have suffered by reason of the Respondents' discrimination against
him, less his net earnings during the period of such discrimination.
Stiles is entitled to back pay from July 31, 1950, the date of the dis-
charge, to the date of the Respondents' offer of reinstatement. Shupe,
Bell, and Swearengin have been reinstated ; they are entitled to back
pay from July 31, 1950, to the date of their reinstatement.12' Carver,
Pettet, Bee, Kelly Smith, Gill, Hoy, Wallace, and Frank Smith are
entitled to back pay from July 31, 1950, to August 8, 1950, when
they concertedly refused the Respondents' offer of reinstatement.
Each of these employees, except for Carver who is not entitled to
reinstatement, is entitled to be made whole for any loss of pay he may
suffer, or may have suffered, by reason of the Respondents' refusal,
if any, to reinstate him during the period from 5 days after the date
on which he may apply, or may have applied, for reinstatement, to
the date of the Respondents' offer of reinstatement. In addition,
Kelly Smith is also entitled to back pay from on or about September
1, 1950, when the Respondents refused his request to return to work,
to the Respondents' next offer of reinstatement.
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents, Charles I. Stafford, Alva
Stafford, James L. Stafford, Charles Raymond Stafford, and Robert
E. Stafford, doing business as Stafford Operating Company, Spring-
field, Missouri, their agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in. International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, Gen-
eral Drivers, Warehousemen and Helpers Local No. 245, A. F. L., or
any other labor organization of their employees by discriminatorily
discharging or refusing to reinstate any of their employees, or in any
other manner discriminating in regard to their hire or tenure of
employment, or any term or condition of employment.
(b) Refusing to bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
General Drivers, Warehousemen and Helpers Local No. 245, A. F. L.,
12 Shupe returned to work on August 7, 1950 ; Bell and Swearengin , the next day.
STAFFORD OPERATING COMPANY 1223
as the exclusive representative of Respondents' truck drivers and
,driver-helpers, excluding garage employees, livestock order buyers,
office employees, and supervisors as defined in the Act, with respect
to rates of pay, wages, hours of employment, and other conditions of
,employment.
(c) By means of unilateral changes in rates of pay, wages, hours
of employment, or other conditions of employment, or in any other
manner interfering with, restraining, or coercing their employees in
the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen ,% Helpers of America, General Drivers, Ware-
housemen and Helpers Local No. 245, A. F. L., or any other labor or-
ganization, to bargain collectively through representatives of their
own choosing, to engage in other concerted activities for the purposes
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 Act.
2. Take the following affirmative action which the Board finds will
,effectuate the policies of the Act :
(a) Offer to Kelly E. Smith and Harry E. Stiles immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority and other rights and
privileges.
(b) Upon application, offer to Dale Bee, Alva C. Gill, Duwane Hoy,
Leland Pettet, Frank Smith, and Earl Wallace immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges;
and dismiss, if necessary, any persons hired on or after August 8, 1950,
to make room for these employees.
(c) Make whole Carl Carver, Dale Bee, Leland Pettet, Alva C.
Gill, Duwane by, Kelly E. Smith, Frank Smith, Harry E. Stiles,
Earl Wallace, Walter Shupe, Melvin Bell, and Clyde Thomas Swear-
engin, in the manner set forth in the section of this Decision and
Order entitled "The Remedy," for any loss of pay they may have
suffered as a result of Respondents' discrimination against them.
(d) Upon request, make available to the National Labor Rela-
tions Board, or its agents, for examination and copying, all payroll
records, social security payment records, time cards, personnel records
and reports, and all other records necessary to analyze and compute
the amounts of back pay due and the rights of reinstatement under
the terms of the Board's Order.
(e) Upon request, bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
1224 DECISIONS OF NATIONAL *LABOR RELATIONS BOARD
General Drivers, Warehousemen and Helpers Local No. 245, N. F. L."
as the exclusive representative of Respondents' employees in the ap-•
propriate bargaining unit, with respect to rates of pay, wages, hours.
of employment, and other conditions of employment and, if an un-
derstanding is reached, embody such understanding in a signed agree-
ment.
(f) Post at their place of business and garage in Springfield, Mis-
souri, copies of the notice attached hereto and marked "Appendix A."ls-
Copies of said notice, to be furnished by the Regional Director for
the Seventeenth Region, shall, after being duly signed by Respondents"
authorized representative, be posted by Respondents immediately
upon receipt thereof and maintained by them for sixty (60) con-
secutive days thereafter in conspicuous places, including all places,
where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director for the Seventeenth Region in
writing, within ten (10) days from the date of this Order, what
steps Respondents have taken to comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations.
Board, and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in INTERNATIONAL BROTII-
ERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS
OF AMERICA, GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS-
LOCAL No. 245, A. F. L., or in any other labor organization, by dis-
criminatorily discharging or refusing to reinstate any of our em-
ployees, or in any other manner discriminating in regard to their
hire and tenure of employment, or any term or condition of em-
ployment.
WE WILL NOT refuse to bargain collectively with INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN &
HELPERS OF AMERICA, GI^NURAL DRIvERs, WAREHOUSEMEN AND
HELPERS LOCAL No. 245, A. F. L., as the exclusive representative
of our employees in the bargaining unit described below.
WE WILL NOT make unilateral changes in their rates of pay,
wages, hours of employment, or other conditions of employment
without first consulting the above union, or in any other manner
interfere with, restrain, or coerce our employees in the exercise
18 In the event this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted, before the words, "A Decision and Order," the words, "A Decree
of the United States Court of Appeals Enforcing."
STAFFORD OPERATING COMPANY 1225
of their right to self-organization, to form labor organizations, to
join or assist INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, GENERAL
DRIVERS, WAREHOUSEMEN AND HELPERS LOCAL No. 245, A. F. L.,
or any other labor organization, to bargain collectively through
representatives of their own choosing, to engage in other con-
certed 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 S (a) (3) of
the Act.
WE WILL bargain collectively, upon request, with INTERNATION-
AL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, 'WAREHOUSEMEN &
HELPERS OF AMERICA, GENERAL DRIVERS, WAREHOUSEMEN AND
HELPERS LOCAL No. 245, A. F. L., as the exclusive representative
of our ,employees in the bargaining unit described below, with re-
spect to rates of pay, wages, hours of employment, and other con-
,ditions of employment and, if an understanding is reached, em-
body such understanding in a signed agreement. The bargain-
ang unit is:
All our truck drivers and driver-helpers, excluding garage
'employees, livestock order buyers, office employees, and su-
pervisors as defined in the National Labor Relations Act, as
amended.
WE wiLL offer to Kelly E. Smith and Harry E. Stiles immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other rights
and privileges.
WE WILL, upon application, offer to the employees named below
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and
other rights and privileges :
Dale Bee Leland Pettet
Alva C. Gill Frank Smith
Duwane by Earl Wallace
WE WILL make whole each of the employees named below for
any loss of pay suffered by them as a result of our discrimination
against them :
Carl Carver
Dale Bee
Leland Pettet
Alva C. Gill
Duwane Hoy
Kelly E. Smith
Frank Smith
Harry E . Stiles
Earl Wallace
Walter Shupe
Melvin Bell
Clyde Thomas Swearengin
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire and tenure of employment or any term
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
CHARLES I. STAFFORD, ALVA STAFFORD, JAMES L. STAF-
FORD, CHARLES RAYMOND STAFFORD, AND ROBERT E.
STAFFORD, INDIVIDUALLY AND AS PARTNERS, DOING
BUSINESS AS STAFFORD OPERATING COMPANY,
Employer.
By ---------------------------------------------------------
(Representative) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon original and amended charges filed August 8 and December 1, 1950,
respectively, by International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, General Drivers, Warehousemen and Helpers
Local No. 245, A. F. L. (herein called the Union), the General Counsel of the
National Labor Relations Board (herein called General Counsel and the Board),
by the Regional Director for the Seventeenth Region (Kansas City, Missouri),
issued a complaint on January 16, 1951, which, as amended at the hearing, alleges
in substance thrt the five Respondents named in the caption, partners doing
business as Staltird Operating Company,' (1) on or about July 31, 1950, dis-
criminatorily discharged and refused to reinstate 12 employees named in the
complaint for joining and assisting the Union and other concerted activity; (2)
from about July 31, 1950, vilified and disparaged the Union, threatened and
interrogated their employees, and promised and granted wage increases to their
employees, all to discourage membership in the Union ; (3) since August 1, 1950,
refused to recognize and bargain with the Union as the statutory representative
for purposes of collective bargaining of an appropriate unit composed of Respond-
ents' truck drivers and driver-helpers, excluding garagemen, livestock order
buyers, office employees and supervisors, and has bargained directly and in-
dividually with employees in that unit ; and that Respondents by such conduct
have engaged in and are engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and
(7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called
the Act. Copies of the charges, complaint, and notice of hearing thereon were
duly served on Respondents and the Union.
Respondents filed an answer which, as amended, admitted they are engaged
in interstate commerce, denied the commission of any unfair labor practices,
and alleged that on July 31, 1950, they laid off certain employees for lack of
business, rehired some of them later, and offered to rehire others, which offer the
latter refused. As a further defense, the answer alleged the charges herein were
' The caption appears as amended at the hearing.
STAFFORD OPERATING COMPANY 1227
false and filed solely to compel Respondents to require their employees to join the
Union as a condition of employment, and that the Union and its agents thereby
violated Section 8 (b) (2) and 8 (b) (4) (A) and (B) of the Act.
Pursuant to notice, a hearing was held in Springfield, Missouri, February 6-
through 13, 1951, before the undersigned Trial Examiner, duly designated by the
Chief Trial Examiner. All parties were represented by counsel, participated in
the hearing, and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the issues.
During the presentation of the Board's case, the Trial Examiner denied
Respondents' motion to strike a portion of paragraph 2 of the complaint stating
facts as to the business of Respondents bearing on jurisdiction, and granted
General Counsel's motion to strike the allegations of violation of Section 8 (b)
(2) and (4) from the answer.2 At the close of the Board's case, a motion of
General Counsel to add the name of Jim Swearengin' to the list of alleged dis-
charged employees was granted. Respondents' motion to dismiss the complaint
on the merits was granted as to allegations of threats to employees on and after
July 31, 1950, but denied as to all other allegations. During Respondents' case,
the Trial Examiner reserved decision on a motion of General Counsel to quash
a subpena by which Respondents caused the production of records of the Missouri
Unemployment Commission relating to the applications of certain employees
named in the complaint for unemployment compensation, and to strike all testi-
mony adduced from those records ; the motions are now denied .4 At the close of
the hearing, Respondents' renewed motion to dismiss on the merits was taken
under consideration ; the motion is now denied on the basis of the findings herein.
General Counsel's motion to conform the pleadings to the proofs as to minor
variances was granted without objection. The parties waived oral argument,
but the Trial Examiner has received briefs from General Counsel and Respond-
ents. With his brief, General Counsel filed a motion to correct numerous typo-
graphical errors in the record. The motion has been considered and, there being
no objection, is hereby granted; the record shall be considered as corrected in
the particulars set forth in the motion papers, which are hereby made part of
the record and marked General Counsel's Exhibit No. 14.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
At all times mentioned in the complaint and material to the issues, Re-
spondents Charles I. Stafford, and four of his sons, Alva, James L., Charles
Raymond, and Robert E. Stafford,' have been partners engaged in Springfield,
Missouri, in the business of buying livestock upon order, under the name and
style of Stafford Operating Company. In the course of their business they buy
livestock at the stockyards of Union Stockyards Company, in Springfield, Mis--
7 During the hearing, the Trial Examiner rejected all evidence offered by Respondents
to prove activities of laid-off employees in following Respondents' trucks and talking to the
drivers thereof after July 31, 1950.
9 His correct name is Clyde Thomas Swearengin. He will be referred to as "Jim"
Swearengin in this Report, but his proper name is used in the concluding findings, recom-
mended order, and notice.
4 Under existing Board policy , State laws regulating the use and admissibility of evi-
dence are not binding in proceedings before the Board , and cannot prevent the reception of
such evidence or records in such proceedings if otherwise material or relevant. See
Tennessee Coach Company, 84 NLRB 716; Metal Mouldings Corporation, 39 NLRB 107.
' Charles Raymond Stafford and Robert E. Stafford are referred to in the record and
herein as "Raymond Stafford" and "Robert Stafford."
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
souri, and at similar livestock markets in West Plains,. Missouri, and Parsons,
Kansas, upon orders of packinghouses and other meat processors. Upon receipt
of such orders, Respondents purchase livestock in these markets outright, and
,deliver the same to their customers both by rail and shipment in their own
trucks, transferring title in the livestock to the customers upon delivery at their
plants. Charles I. Stafford and three of his sons, Floyd, Lloyd, and Alva Staf-
ford, own and operate the stockyard at Parsons, Kansas, at which Respondents
buy livestock. Charles I. Stafford is and has been a stockholder and director
-of the Union Stockyards Company above mentioned ; he was its president during
1950; his son, Floyd Stafford, is now its manager. In the course of their business,
Respondents transport annually livestock valued in excess of $500,000, between
Missouri and the States of Arkansas, Alabama, Illinois, Iowa, Louisiana, New
Mexico, Texas, and Wisconsin.
Respondents concede, and I find that on the basis of the above facts, that
Respondents are engaged in interstate commerce. See Stanislans Implement
and Hardware Company, Lin cited, 91 NLRB 618.
H. THE ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
,of America, General Drivers, Warehousemen and Helpers Local No. 245, A. F. L.,
is a labor organization admitting to membership employees of Respondents.
M. THE UNFAIR LABOR PRACTICES e
A. Preliminary facts
In the operation of the partnership business, Respondent Charles I. Stafford,
the father, concerns himself mainly with the solicitation of orders and business.
His four sons, the remaining Respondents, generally handle all other operating
functions in the business, but Robert E. Stafford is principally in charge of
Respondents' trucks, assigning them and their drivers to various trips, and
supervising the employees in Respondents' garage where the trucks are serviced,
maintained, and overhauled. The garage is a large building located immediately
-adjacent to the stockyards and loading platforms of the Union Stockyards Coin-
pany. Although the partners confer on all aspects of the business, including
the hiring, discharge, and layoff of personnel, Robert E. Stafford is charged
with carrying out the recommendations and decisions of the partners in per-
sonnel matters involving the truck drivers, helpers, and garage employees.
At the time of the events alleged in the complaint, Respondents employed 14
drivers and helpers, 4 garage employees,' 2 livestock order buyers, and 2 clerical
employees. They owned and operated 13 truck-tractors, including 1 GMC Diesel
tractor and 12 White tractors, all with corresponding trailers. Respondents'
drivers were assigned to trips in rotation according to the position of their names
on a blackboard kept in the garage : The first driver reporting in from a trip at
the end of a week placed his name at the top of the board, and other drivers wrote
in their names under his in sequence as they reported in; the top man on the
board got the first trip out Monday morning, the next man got the second trip,
and so on through the list. Each driver chose his own helper or assistant driver
"The findings in this section are based on the preponderance of credible testimony given
by witnesses of both General Counsel and Respondents , which testimony is mutually cor-
roborative in the main Testimony conflicting with these findings has not been credited.
Reasons for denying credit to certain testimony on important points will be discussed in
the findings thereon.
4 The status and duties of drivers , helpers, and garage employees will be discussed in
detail in my findings relating to the appropriate unit.
STAFFORD OPERATING COMPANY 1229,
for the long trips which required the use of such assistants. Seniority was not
applied in the assignment of trips to drivers, but only in the assignment of new
equipment, the oldest men in length of service being assigned to drive the newest
equipment. This usually resulted in somewhat greater pay for the older drivers,
because both drivers and helpers were paid only on a mileage basis for each trip,
and the newest equipment was usually sent on the longer trips which paid more
money.,
During 1949 Respondents' drivers normally drove their trucks alone on most
trips, regardless of their duration. Occasionally a garage employee or temporary
helper hired for the purpose was sent out with a driver on a long trip to assist
in the driving and unloading of livestock at destination The nature of Re-
spondents' business brings them within the classification of private carriers sub-
ject to the rules and regulations of the Interstate Commerce Commission. In.
September 1949, an inspector of that Commission examined Respondents' rec-
ords and method of operation and advised them that under the rules of the Com-
mission they must send helpers with their drivers on all trips of 10 hours or more,
and that drivers and helpers must maintain individual trip logs and furnish medi-
cal certificates to show their physical qualifications for driving. Accordingly,
Respondents began in February and March 1950 to send helpers with some regu-
lar drivers on long trips, and after April 1 helpers accompanied all drivers on
long trips of 10 hours or more. About the same time Respondents complied with
the other requirements of the Commission as to trip logs and medical certificates.
During the first half of 1950, and particularly in June and early July, Re-
spondents' order business had fallen oft to some extent; there was a consequent
reduction in the number of truck shipments, and the drivers and helpers received
fewer assignments, with longer intervals between trips tinder the rotation system,
and correspondingly fewer pay checks. During June and the early part of July
1950, they were averaging between one and two trips per week, and at times
some received only one trip every 2 weeks. Prior to the assignment of helpers
on long trips, the drivers were paid at the rate of 31/2 cents per mile on all trips,
loaded one way; after helpers were assigned, the drivers were cut to 3 cents a
mile on trips with helpers, and the latter received 11/ cents a mile. Both of
these circumstances combined to reduce the total weekly pay earned by the
drivers. For several weeks prior to July 31, 1950, they discussed the situation
and also spoke to Robert and Raymond Stafford about the scarcity of work,
complaining that they were not getting enough trips to make any money. During
the same period, the partners discussed the complaints of the drivers, exploring
the possibility of making some adjustment in the pay of both drivers and helpers,
and also considering a layoff of some employees in order to give the remaining
drivers and helpers more trips. Although the partners reached no definite de-
cision on the matter until July 31, 1950, as set forth hereafter, both Robert and
Raymond Stafford told the men that some changes might be necessary. Early
in July, Raymond Stafford mentioned to Walter Shupe, the newest driver on
the roster, that Respondents might have to lay off some of the newer men if
business did not pick up. He also told Melvin Pheiffer they might have to
lay off some men because work was scarce, and the drivers were only getting
about one run a week. During the week of July 24, Robert Stafford told Pheif-
fer that Respondents might have to cut the pay rates of drivers and helpers.
Several weeks before July 31, Robert Stafford told Shupe that he would have
to let some of the younger men go because of slack business, and that Shupe
and Melvin Bell, another new man, might be laid off. He repeated the warning
to Shupe on July 30, giving as the reason that Respondents had too many drivers
and the older men were not making enough money. He also told Bell in the
same period that the helpers were not making enough money, and he intended
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to raise their pay and would either lay off some of the junior drivers and helpers
or cut the drivers' pay in older to raise the helpers ; he repeated substantially
the same thing to Bell on Saturday, July 29, indicating the layoff might involve
Bell, but adding that the helpers would receive a raise starting Monday, July
31. The same clay Robert Stafford told Carl Carver, Shupe, and Kelley Smith
that, starting Monday, the drivers' pay rate would be reduced to 21/> cents per
mile, the helpers would receive 2 cents a mile, and the latter would be assigned
to trips from a separate assignment board
B. The concerted activity and layoff of July .0,1
Carver, Shupe, and Kelley Smith spread the word of the impending pay cut
among the other drivers and helpers over the week end of July 29-30 and also
when they gathered at the garage Monday morning, July 31, for assignments.
.Early that morning Carl Carver told Noble Gower, another senior driver,' about
the proposed cut, and the latter at once called the drivers and helpers together
to discuss the matter ; all the drivers were present, except Shupe .9 The older
drivers agreed that they could not afford to work for only 21/2 cents a mile, but
were not agreed on what action to take. Gower volunteered to talk to Raymond
Stafford about the proposed pay cut, and asked Alva Gill to accompany him. Gill
refused, and Melvin Pheiffer then said he would go with Gower. Gill suggested,
instead, that if the men wanted to bargain with Respondents about the pay cut,
they should join the Union which had experience in bargaining on such matters.
Leland Pettet made the same suggestion. Gower and Pheiffer refused to join any
union, saying they would talk to Raymond Stafford first. They left the group
.and went to the Union Stockyards adjacent to the garage to find Stafford. After
further discussion, the remaining drivers and helpers accepted Gill's suggestion
and about 11 a. in. went to the union headquarters in Springfield. This group
consisted of Carl Carver, Leland Pettet, Dale Bee, Earl Wallace, Kelley Smith,
Frank Smith, Harry Stiles, Duwane Hoy, Alva Gill, Melvin Bell, and Jim
Swearengin.
Gower and Pheiffer spoke to Raymond Stafford at Respondents' office in the
'Livestock Exchange Building. Gower asked him if the drivers were going to be
cut in their pay rate. Stafford said that something had to be done. Gower said
the men had just talked about the proposed pay cut, and that he could not stand
the cut. Stafford replied that there would be no pay cut at that time, but
Respondents would "try it another week like we are," and would figure out some
solution. Gower and Pheiffer talked at the stockyard to Robert Stafford who
told them substantially the same thing. Gower then went to eat lunch, and
Pheiffer returned to the garage to see the other men, but they were not there10
Early that afternoon, after his talk with Gower and Pheiffer, Raymond Stafford
discussed the matter with his brothers, Robert and Alva. It was decided that
there should be a layoff, and Raymond was delegated to carry it out. He re-
turned to the garage, but the 11 drivers and helpers had not yet returned from
the union hall. He laid off that whole group between 4 and 5 p. in. that afternoon,
as set forth below.
When the group of drivers'and helpers reached the union hall, the business
agent, Verl A. Nickles, and his assistant, John Rogers, were absent, and the
8 Carver was the oldest driver in length of service ; Gower, Leland Pettet, Dale Bee,
Melvin Pheiffer, and Kelley E. Smith ranked after him in that order.
Shupe had been one of the last men reporting in from a trip the previous week end, was
low on the assignment board, and did not report for work until late that afternoon.
10 The findings in this paragraph are based on certain credited testimony of Gower and
Raymond Stafford, as corroborated in part by that of Pheiffer. Certain other aspects of this
conversation will be considered below.
•
STAFFORD OPERATING COMPANY 1231
employees had to wait until they returned in the early afternoon. After explain-
ing their problem to the union agents, all of the group, except Swearengin, signed
cards applying for membership in the Union, and authorizing it to represent them
for purposes of collective bargaining. Walter Shupe, who was absent that day,
had already signed such a card in January or February 1950 which was appar-
ently never revoked. It is clear from the record, and I find, that 11 of Respond-
ents' 14 drivers and helpers had designated the Union as their bargaining agent
before the layoffs of July 31, 1950.
After signing the authorization cards, the group of employees returned to
Respondents' garage. On the way they stopped to eat at a restaurant near the
garage, and then walked in groups of two or three to the garage. As each group
reached the building, Raymond Stafford met them and told them he could not
use them any more, stating that business was slack, that Respondents had bor-
rowed $50,000 and were also overdrawn about $10,000 at the bank and would
have to return their new trucks to the distributor, and "do the best we can."
At Stafford's request, the men removed their personal belongings from their
tractors and left the premises. When terminating their services, Stafford gave
none of them any indication that he would recall them later.
Following their layoff many of the employees" gathered daily during the bal-
ance of that week at the restaurant and pool hall near the garage, which was the
usual gathering place of the drivers and helpers when off duty and awaiting
assignment. During this period, they were available for recall and assignment,
but Respondents made no attempt to recall them.
C. The contentions as to the layoffs
The main issue in the case is whether or not the layoff of 12 out of 14 drivers
and helpers on July 31, 1950, was a discriminatory discharge motivated by their
concerted activity and affiliation with the Union, as contended by General Coun-
sel, or was a bona fide layoff for economic reasons, as claimed by Respondents.
Inasmuch as Raymond Stafford gave none of the men laid off any indication
that they would be recalled later, it appears that their termination was final,
not temporary. Therefore, if their layoff did not violate the Act, they were not
after July 31 employees entitled to be considered as part of the appropriate
unit in determining the Union's majority status on the issue of violation of
Section 8 (a) (5) of the Act; on the other hand, if their layoff was in effect a
discriminatory discharge violating the Act, they must still be considered "em-
plolees" for purposes of remedial action and in considering the alleged viola-
tion of Section 8 (a) (5).
Respondents contend that the reasons given by Raymond Stafford to the em-
ployees at the time of the layoff were the true and only reasons for their termi-
nation, and in support of this contention rely on company records and other
testimony which tend to show (1) the lack of antiunion sentiments or state-
ments by Respondents, and their ignorance of the employees' concerted activity,
prior to the layoff; (2) that the volume of Respondents' truck shipments from
Springfield during June, July, and August 1950, had decreased to approximately
60 percent of the volume of such shipments during the corresponding months of
1949; (3) that rail shipments for the same period in 1950 had dropped to about
50 percent of those in the parallel period in 1949; (4) that total salaries paid
11 Carl Carver , Alva Gill , Kelley Smith , Frank Smith , Leland Pettet, Harry Stiles, Earl
Wallace. Dale Bee, and Walter Shupe . Shupe testified credibly, and I find that he was
also laid off that afternoon when he reported for work, although he had not Joined in the
group talk that morning -or visited the union hall with the other drivers.
1232 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
drivers and helpers in June and August 1950 were substantially less than those
paid drivers alone in the same months of 1949; (5) that the number of head of
livestock bought by Respondents in the same period in 1950 was substantially
less than for 1949; (6) that the financial and economic reasons given by Re-
spondents at the time of the layoff were true; and (7) that on July 31, 1950,
Respondents had work for only two drivers, and therefore sent out the only
two drivers available, who were older employees, and laid off all the rest for
lack of work.
The record discloses no substantial evidence of antiunion sentiment or activ-
ities by Respondents prior to the events of July 31, 1950. Carver and Pettet
testified as to remarks by Respondents Charles I. and Alva Stafford in 1947
and 1948 purporting to indicate their antiunion animus. Charles I. Stafford,
Robert E. Stafford, and Raymond Stafford denied making any antiunion state-
ments to their employees at any time. Alva Stafford did not testify. I do not
rely on this testimony in my findings herein, inasmuch as I consider isolated
statements by two of respondents several years before the terminations in
question, as being too remote in time, even if credited, to have any substantial
probative value in ascertaining the true reasons for those terminations' For
reasons which appear below, I cannot agree that Respondents were ignorant of
the employees' concerted activity prior to the layoff.
The record shows that during the months of June, July, and August 1950,
Respondents' shipments of livestock by truck were approximately 61 percent of
such shipments during the corresponding months of 1949; their purchases of
livestock in the Springfield market in the same period of 1950 ran about 62 per-
cent of such purchases in the corresponding months of 1949.13 The record also
shows that during the entire year 1950, Respondents purchased and sold 116,859
head of livestock on the Springfield market as against 131,623 head during 1949,
a decline of about 12 percent. The lower percentage of annual decline, as com-
pared to June, July, and August, alone, is due to the fact that Respondents
handled substantially more livestock in January, February, October, November,
and December of 1950 than in the corresponding months of 1049.14 The over-
all decline for 1!'-,0 is explained in part by the fact that Respondents had lost
one of their largest customers in January of that year. On the basis of the
above facts it is clear, and I find, that Respondents' over-all business had de-
clined noticeably during 1950 when compared with their 1949 volume. These
facts alone would be ample justification for a layoff of Respondents' transport
employees during the low month of July 1950, barring other considerations.
However, the issue raised by the complaint and Respondents' defense thereto
requires a careful analysis of Respondents' operations before and after the
layoff, of the circumstances surrounding the layoff, and a general consideration
of Respondents' past experience in the operation of its business. These cir-
cumstances and factors will be considered and analyzed, not for the purpose of
determining whether, as a matter of business judgment, they warranted the
12 See Consumers Cooperative Refinery Association, 77 NLRB 528.
131 make no finding on the basis of figures prepared by Robert Stafford to show a
decline in rail shipments during the same months of 1950 as compared to 1949. Such
figures have no value for comparative purposes, for while his figures tot 1950 show the
number of railway carloads, whether double-deck or single-deck loads, and are supported
by the records of the railway shipper, it is not clear from his testimony whether his
figures for the same months in 1949 represent railway carloads as unit loads, whether
double-deck or single -deck, or reflect each double -deck carload as two shipments ; further-
more, the railway shipments represented only a small portion of Respondents' total ship-,
ments and are of slight value in determining the fluctuation in truck shipments which
were handled by the drivers and helpers here involved.
11 See analysis of livestock purchases for both years contained in Appendix A.
STAFFORD OPERATING COMPANY 1233
layoff, but to determine whether the reasons advanced for the layoff were the
true reasons or mere pretexts, and thus whether the underlying reason and
motive for the layoff was in fact economic or discriminatory.
The record indicates that, on the basis of Respondents' past experience in the
livestock order business in Springfield, a decline in business, and consequently in
truck shipments, during June, July, and August was not unusual. Respondent
Charles I. Stafford, who has been in the business in Springfield for 25 years,
testified credibly that: The business fluctuates during the year, with good and
bad periods, which usually occur about the same time each year ; July is usually
the worst mouth of the year; business increases during the fall through Decem-
ber-; September and October are usually the best months of the year ; the volume
of livestock going through the Springfield stockyards increases substantially in
the fall after the livestock come in from the pastures. Raymond Stafford testi-
fied that Respondents' business was seasonal, that July and August were the
lowest months and that the volume of business, particularly in the handling of
hogs, picks up in September, and that the fluctuations in the business are gov-
erned largely by the hog run because most of their orders deal with hogs. This
pattern of annual fluctuation in business is borne out by the figures in Appendix
A showing the amount of livestock bought in 1949 and 1950. These figures show
that in both years the volume was low in January and-February; picked up
somewhat in March, April, and May; dropped off substantially in June and
July; and picked up again during August, September, October, and November.
The fluctuation in 1950 followed the general pattern more closely than the
figures for 1949, for the volume started to increase in August 1950, continued
upward through October and remained at a high level for the rest of the year.
Respondents' familiarity with the fluctuation in their business during the first 6
months of 1950 must have made it evident that, while their business was gener-
ally somewhat lower than during 1949, it was following the same seasonal pat-
tern as in former years. It follows that Respondents could reasonably have
expected in July, the lowest month, that their business, and in consequence their
truck shipments, would pick up in August and in following months. Their con-
duct during the week immediately preceding the layoff of July 31, 1950, and in
the month of August indicates that in fact they were preparing for the usual
fall pickup in business, rather than preparing to retrench or effect economies
as they indicated to their employees during July.
In February or March 1950, Respondents had ordered four new White tractor
trucks from a local distributor. The distributor promised delivery in 90 days,
but dire to manufacturing difficulty, delivery was not made until July. In the
latter part of that mouth, Raymond Stafford made an arrangement with the
distributor to take back the trucks at the price the Respondents paid for them,
but the transaction was never completed and the trucks were never returned. On
the contrary, Respondents took delivery on all of the trucks late in July.' These
trucks have been operated by respondents ever since. If Respondents had been
sincere in their desire to retrench because of slack business in July, it seems
reasonable that they would either have declined to take delivery in July on the
new units in accordance with their agreement with the distributor, or would
have returned them very quickly thereafter. The fact that they kept the trucks
and were still operating them at the time of the hearing impels the conclusion
that, while Raymond Stafford may have made an arrangement for their return
as a possible hedge against future adverse business conditions, Respondents had
decided before July 31 not to take that step. From these facts, I conclude and
"Respondents took deliveiy on trucks No 38 and No 42 on or about July 21 or 22.
The record does not clearly indicate the exact date of delivery of the other two trucks,
but shows that No. 40 was first driven by Carver on July 25 and No. 36 by Bee on July 27.
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that Respondents had no bona fide intent on July 31 to return the trucks.
for reasons of economy, induced by poor business conditions, and that when Ray-
mond Stafford advanced that reason to the men at their layoff, it was merely
as a pretext to cover the true reason for their termination.
The record indicates that on July 17, 1950, Respondents were overdrawn at
their bank $6,777.66, and that on July 27, 19550, 10 days later, they increased their
obligations to the same bank by borrowing $50,000 on their promissory note, pay-
able in 6 months at the rate of $3,000 per month, beginning August 27, 1950.
Respondents have made these payments on time, so that a balance of $32,000•
was owing to the bank at the time of the hearing. Respondents had apparently
made similar loans in the past from the same source without difficulty, and at
the time of the hearing their credit was good. The incurrence of this obligation
during the poorest month of the year certainly does not comport with a strait-
ened financial condition caused by poor business conditions which would dictate
retrenchment or economy ; rather it indicates that Respondents were not con-
cerned about their future business prospects, and it leads me to the conclusion
that Raymond Stafford's reference at the layoff to the overdraft at the bank and
the recent loan was advanced, like the proposed return of the trucks, as another
pretext to cover an ulterior motive.
The acceptance of delivery on the new trucks in late July and the procurement
of a new bank loan at the same time are strong indications that Respondents
expected an expanded. or at least a sustained, volume of operations in the future.
They are not the acts of businessmen faced with the necessity of curtailing oper-
ations and expenses, but appear to be preparations for an expected pickup in
business. The record shows that Respondents' business, in fact, began to pick
up in the last week of July and continued to increase throughout August and
the following months, and that, Respondents took measures to cope therewith
which are contrary to the reasons they gave for the layoffs.
The Company's records show that in the week of July 24, preceding the lay-
off, Respondents sent out 17 truckloads of livestock, and every regular driver
and helper on the roster received 2 or more trips, with the exception of Dale Bee,
who only had 1 trip of 2 days' duration. With that exception, all the regular
drivers and helpers were kept on the road between 4 and 5 days that week. Dur-
ing August, Respondents' truck shipments increased substantially; 10 truck-
loads were sent out the week starting July 31, 15 during the week of August 7,
8 during the week of August 14, 12 during the week of August 21, and 15 during
the week of August 28, making a total of 60 loads sent out from July 31 through
August, as compared with approximately 49 during July. Although Respon-
dents sent out 7 truckloads less during the week of July 31 than they had during
the previous week of July 24, they found themselves so shorthanded after the
layoff of July 31 that they had to use Robert Stafford as a driver on trips of
August 1 and 4; Melvin Haney, a garageman, as helper on trips of August 1 and
3; J. R. Wallace, another garageman, as helper on 1 trip of August 4; and were
compelled to hire 3 new helpers, Eugene Tidwell for a trip on August 1, Harvey
Smith for a trip on August 2, and Ernest West for a trip on August 4.16 During
19 During the remainder of August , business continued at a high level which required
the continued use of these garagemen and new helpers, and the hiring of other new
employees. Skeeter Gardner was hired as a regular helper August 14, and Douglas
Anderson as regular driver August 21. Floyd Potter, Rolline Day, Ira Johnston, Fred
Taylor. and one Nichols were hired as temporary helpers for one or more trips apiece
in this period Robert Stafford drove it truck on at least three trips in August. Gower,
Pheiffer, and Melvin Bell received more work than during July. Respondents were also
compelled to lease additional trucks to meet their tiansport requirements in August As
The business increased after August, Respondents were compelled to hire two additional
helpers in October, one helper and one driver in December, and another helper in Janu-
ary 1951.
STAFFORD OPERATING COMPANY 1235
this week, as I have found above, man}' of the drivers and helpers who were
terminated on July 31 remained nearby within call and available for work.
Respondents knew that these men were available,14 yet Respondents never called
upon any of them to make trips during that week. It had always been Respon-
dents' practice to buy livestock upon telephone orders which come in during the
morning; the stock is bought during the day against the orders and shipped that
night or the next morning; on rare occasions an order remains on hand several
days before it can be filled. These facts indicate that Respondents usually knew
a day or two in advance what truck trips would be necessary, so that they must
have known on July 31 what trips would be scheduled on Tuesday, August 1, and
on Tuesday what trips would be made Wednesday, and so on for the remainder
of the week Despite this knowledge, they made no attempt to call in any of
the available terminated drivers, but carried on their operations by pressing 1
partner and 2 garagemen into service, and hiring 3 new helpers. This conduct
warrants the inference that the layoff of July 31 was for reasons other than
slack business. The inference is further strengthened by the admission of Ray-
mond Stafford that he felt on July 31 that Respondents could "get by on very few
drivers," and could use Melvin Haney and J. R. Wallace, garagemen, as "dual
purpose" men to drive when they were not busy in the garage." This indicates
that, at the time of the layoff, he was contemplating the use of other personnel to
carry on the transportation of livestock, rather than the recall of any of the
experienced laid-oft employees.
The above factors, coupled with the timing of the layoff on the afternoon of
July 31, shortly after the employees had joined the Union, and the fact that
false economic reasons were given for that action, warrant the conclusion that
the men were laid off for their concerted activity. Respondents concede that
the eumplo^ces' group discussion that morning, their decision to seek aid of the
Union, their actual affiliation with the Union, and their layoff en masse upon
their return from the Union, occurring all on the same day, might warrant an
inference that Respondents knew of their union membership and discharged
them for that reason However, Respondents argue that the inference is negated
by the testimony of Raymond Stafford, Gower, and Pheiffer that during their
talk that morning, the Union was not mentioned. I consider most of Pheiffer's
testimony as to the events of July 31 unworthy of credit ; his testimony not
only differs from the preponderance of credible testimony of other witnesses,
but is self-contradictory in several aspects. I have credited Gower regarding
the group discussion of July 31 only to the extent that his testimony is con-
sistent with credible testimony of other witnesses. Both men were admittedly
antiunion, and both knew before they went to see Raymond Stafford that morn-
ing that Gill had taken the lead in suggesting affiliation with the Union, and
that the remainder of the drivers and helpers favored that idea. Gower and
Stafford testified that Gower reported to Stafford the discussions of the whole
group of drivers, and at least Gower's own feeling about the proposed pay cut.
I am convinced that these witnesses were not telling the whole truth about the
scope of the conversation, and that in fact Gower and Pheiffer reported to
Stafford both Gill's suggestion, the employees' decision to join the Union, and
their own decision not to affiliate. This conclusion is strengthened by other
pertinent facts. Gill was No. 1 on the assignment board that morning, and his
tractor was being serviced for a trip to Dallas early that afternoon. After his
'W'hen R.nmond Stafford sought Kelley Smith of August 8 to get a statement and
oiler him a job, Ill,, found him at the cafe near the garage
'" The extent to wliuli garage employees engaged in the transportation activities will
he diacus,ed ill Ille ieclion involving the refusal to bargain
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussion with Gower and Pheiffer , and while the employees were at the union
hall, Raymond Stafford sent Pheiffer out about 2 p. in. on the Dallas trip in new
truck No. 40 , which had previously been driven by Carver . Gill's truck was
left standing there and when Gill returned with the other men that afternoon.
Raymond Stafford laid him off without giving him an opportunity , as top man
on the board , to make the second Dallas trip that day ; instead , Raymond sent
Gower, the other antiunion driver, on the trip that evening . Respondents give
no explanation whatever for their refusal to send Gill out at all that day, except
the fact that he was not available at 2 p. in. for the first trip . Gill, a relative
of the Respondents , had theretofore occupied a favored position in the transport
operations of Respondents ; he had worked for Respondents on several occasions
and had been hired by Charles I. Stafford , the senior partner, for his present
employment . Prior to July 31 Gill was driving Respondents ' only Diesel tractor,
for which he was paid .4 cents a mile on solo trips , a half cent more than drivers
operating the other trucks. He had also been a confidante of Respondents, for
Raymond apparently credited his reports about other drivers and their work.
On or about August 8, a week after the layoff and the Union 's request for a
bargaining conference , as found below , Raymond Stafford suddenly vilified Gill
without apparent justification during a personal conversation after questioning
him about the Union . This event will be discussed below. It is apparent that
Gill fell out of Respondents ' good graces as soon as they learned of his leader-
ship in the move to affiliate with the Union , and that their feelings toward
him underwent an immediate change. which they displayed in action by his
layoff and in words by Raymond 's vilification of him a week later . The com-
bination of these facts further persuade me that Gill and the other employees
were laid off because they joined the Union.
The record also shows that the layoff of July 31 was an unusual act not in
accordance with Respondents ' past practices during slack periods. The credible
and uncontradicted testimony of Carver and Bee indicates , and I find, that during
slack seasons in past years, Respondents did not lay off drivers ( except once
during the winter of 1946-47), but merely assigned the available trips to the
drivers in rotation , with the result that all were kept employed but received
only one trip a week or every . 2 weeks on the average .19 This practice was in
effect during June and the early part of July 1950 , and Respondents did not
deviate from it until the day the majority of the drivers and helpers joined
the Union , when Respondents suddenly effected the mass layoff . This sudden
variation from their usual practice in itself warrants an inference that the
layoff was caused by the employees ' union affiliation . Furthermore , although
Respondents talked of a layoff before July 31 , they reached no decision among
themselves , and never gave the employees any definite indication as to the time
or extent of the impending layoff. The only decision they reached, and com-
municated to the employees prior to July 31, was the pay adjustment which
would increase the helpers ' pay at the expense of the drivers , starting July 31;
that was the only subject of discussion among the employees that morning, and
was the sole cause of the decision of the majority of them to seek the aid of
19 Under Respondents ' system of paying drivers and helpers, layoffs of such personnel
during slack seasons was not an economic necessity : These employees were not paid
by the week or month, but only by the trip ; they were not paid for waiting time between
trips ; Respondents' expenses for their, salaries varied directly in ratio to the number
and length of the trips they made. Therefore, a layoff of drivers at any time would
not have reduced Respondents ' truck operating expenses ( which included drivers' and
helpers ' salaries ) for any trips actually made.
STAFFORD OPERATING COMPANY 1237
the Union.20 That Respondents had no serious idea of a layoff prior to the
concerted activity of the 31st is further shown by the admission of Raymond
Stafford that the decision for the, layoff was made during his talk with his
brothers Robert and Alva earlythat afternoon, after the men had gone to the
union hall and Raymond had learned of it from Gower and Pheiffer. Although
neither Raymond nor Robert Stafford testified as to the extent or scope of
the layoff decided upon, Raymond's action in effecting the layoff speaks louder
than words in depicting its discriminatory character ; he terminated every man
who visited the union hall, including Swearengin who went with the group but
did not join the Union," and Shupe who was absent from the garage but took
no part in the concerted activity,' and retained only Gower and Pheiffer, who
refused to join the Union. These facts make it clear that the decision for the
layoff was not the result of a prior, considered plan of Respondents evolved
from their economic situation, but was a hasty, on-tile-spot determination reached
after Respondents learned of the employees' concerted activity, and that it
was applied only to the employees who actually or apparently engaged in that
activity.
The group of men laid off included Carver, Pettet, and Bee who ranked first,
third, and fourth, respectively, in length of service ; Gower and Pheiffer, the
retained antiunion drivers, ranked second and fifth, respectively. In an attempt
to counter the obvious inference from these facts, Raymond Stafford claimed
that Respondents did not apply seniority in their handling of employees, stating
that he did not know where to draw the "dividing line" in laying off the men.
However, this testimony is refuted by the remarks of both Robert and Raymond
Stafford to Shupe, Bell, and others prior to the layoff, as found above, which,
indicate that Respondents were thinking of releasing the newer men, in the
event of a layoff, so that the older men would get more trips and earn more
money. This would have been a logical selection, particularly since the older
drivers were the only complainants about scarcity of work and reduced earn-
ings. I am persuaded that Respondents had in mind the application of the
rule of seniority in their early discussions of a layoff. However, when the ma-
jority of the transport employees signed up with the Union, Respondents dis-
20 I do not credit testimony of Raymond Stafford and Gower that : Stafford told Gower
and Pheiffer that moining Respondents would have to lay off a "big majority" of the
drivers, and that it might even include Gower. No statements as definite as this had
been made to the employees as late as July 30, and they were not aware of the imminence
of a layoff during their discussion that morning; they certainly would have discussed
a layoff, which is more drastic than a pay cut, if they had been told about it. When
Gower and 1'heiffer talked to Stafford, the only subject they broached was the pay cut,
and although they both said Stafford proposed a layoff, Gower never mentioned that to
Dale Bee when he saw him late that afternoon after the layoff; he only mentioned the
fact that Stafford had decided to postpone the pay cut These circumstances lead me to
believe that the story of these three witnesses on this point was fabricated for the occa-
sion to create an ostensible continuity of purpose and action on the part of Respondents
as to the layoff, which would tend to minimize the obvious haste of the layoff immediately
following the employees' concerted activity.
From a financial standpoint, there was no apparent connection between the proposed
pay adjustment and the alleged decision for the layoff : If the adjustment had been made,
it would have taken a half cent a mile from the diivers and given it to the helpers; the
total expense to Respondents of 41/a cents a mile would not have been affected, nor would
the layoff of drivers have reduced this total expense for trips actually made.
21 Swearengin was not rehired until August 8, the day Respondents learned from Ellis'
talk with Dale Bee and Swearengin that Swearengin had not joined the Union . See Gen-
eral Counsel 's Exhibit No. 3. It seems clear that Swearengin was laid off because Re-
spondents suspected he had engaged in the concerted activity. Southern Furniture Manu-
facturing Company, 91 NLRB 1159.
22 Shupe was rehired on August 7 only after his plea for work because he needed funds
for medical care for his sick baby. The facts warrant the same inference as to the reason
for his layoff, as in the case of Swearengin.
974176-52-vol. 96-79
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regarded seniority, laid off all who actually or apparently joined the Union and
retained only the two antiunion men. Raymond Stafford further attempted to
justify his choice of Carver, Pettet, and Bee for layoff by stating vaguely that
some of the newest drivers were good drivers, and some of the older drivers
"had begun to slack up." This claim is clearly spurious for several reasons.
First, he laid off all the newer drivers. Second, the only "slacking up" men-
tioned by him consisted of vague reports he had received from Gill for several
months regarding Carver's drinking while on the road, and several accidents
in which Carver was involved. However, Stafford admitted that he never in-
vestigated the drinking reports, that Carver's work had never been affected,
and that he always made his trips on schedule. Although the accidents caused
some loss to Respondents, they never disciplined Carver therefor ; on the
contrary, just before the layoff, Carver had been assigned a new tractor, No. 40,
which certainly belies any lack of confidence in his driving ability. Stafford
did not mention any deficiencies in the work of Pettet, Bee, or other drivers
which would indicate they were "slacking up"; on the contrary, Respondents
were apparently satisfied with Bee and Pettet, for they were also assigned new
tractors the week before the layoff, Bee receiving No. 36 and Pettet No. 38.
Moreover, Respondents apparently ignored these "deficiencies" and applied senior-
ity in making offers of reinstatement on August 8, for the first offer was made
to Carver, and in turn Pettet, Bee, and Kelley Smith were offered reinstatement.
Kelley Smith ranked sixth in length of service. If Carver had been as bad as
Raymond Stafford now paints him, it is unlikely that he would have been offered
reinstatement, even on advice of counsel. Finally, none of these four men was
given his alleged "slacking up" as a reason for his layoff. I am convinced
that the reasons given by Raymond Stafford for laying off the four top drivers
(excluding Gower) were projected by Respondents as an afterthought in a
belated attempt to refute the discriminatory character of the layoff.
After careful consideration of all the facts, circumstances, and factors'out-
lined above, I am of the opinion that Respondents have failed to sustain the
burden of adducing evidence adequate to support the conclusion that the
layoffs in question were due to economic or financial reasons, and I am therefore
constrained to conclude, and I therefore find: That Respondents laid off Carl
Carver, Dale Bee, Leland Pettet, Alva C. Gill, Duwane Hoy, Kelley Smith, Frank
Smith, Harry E. Stiles, Earl Wallace, Walter Shupe, Melvin Bell, and Jim
Swearengin on July 31, 1950, not because of the economic or financial reasons
stated to the employees or other reasons offered at the hearing, but because
Respondents knew or believed that these employees had sought the aid of the
Union with regard to an impending change in their wages and working condi-
tions ; that such layoff was in effect a discharge for such concerted activity ;
and that Respondents thereby discriminated against these employees in regard
to their hire and tenure of employment in order to discourage membership in
the Union, in violation of Section 8 (a) (3) of the Act, and by such conduct
interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed by Section 7 of the Act, in violation of Section 8 (a) (1)
of the Act. 3
23 Cf. Diferentsal Steel Car Company, 75 NLRB 714, enforced 179 F. 2d 241 (C A 6) ;
W. C. Nabors Company, 89 NLRB 538.
Although I have denied motions to strike evidence given by Bernard J. Schibler from
records of the Missouri State Unemployment Compensation Commission, in reaching the
above findings, I have given no weight to the facts, adduced from those records, that some
of the laid-off employees gave "layoff" as the reason for their termination from Respond-
ents' employ, when making application to that Commission for unemployment relief. Their
characterization of their termination as a "layoff" was merely a repetition of what Raymond
Stafford told them and was made utter the fact, following an interview with commission
officials.
STAFFORD OPERATING COMPANY 1239
The Offers of Reinstatement
As found above, Respondents made no offer to reinstate any of the laid-off
employees during the week of July 31, 1950. On Monday, August 7, 1950, Re-
spondents reinstated Walter Shupe upon his plea that he needed work to earn
funds for medical care for his baby; Shupe has worked for Respondents ever
since. On the same date, Respondents retained their present counsel to advise
'them in the matter. On Tuesday, August 8, R. A. Ellis, an associate of such
counsel, visited' Respondents' garage to investigate the labor dispute and take
statements from the employees.
Raymond Stafford told Ellis he needed more drivers that day and asked if
it would be proper to recall some of the men laid off, in view of a previous threat
by Rogers, the union agent, to file unfair labor practice charges against Re-
spondents. Ellis advised him to offer jobs to the men. Carver, the ranking
driver, was not available, so Raymond Stafford called his home and, on learning
he was out of town, asked his wife if Carver wished to return to work. The
record does not show her reply, but Carver never contacted Respondents later in
response to the call." Raymond Stafford located Kelley Smith at the restau-
rant near the garage, and brought hint to the garage, where Ellis asked him for
a statement. Smith refused to make one, saying he preferred to discuss it
with the other union men first ; he asked Ellis if he could bring them to the
garage, to which Ellis agreed. During this discussion, Raymond Stafford asked
Smith if he wished to return to work, to which Smith replied "yes." Stafford
then told the garagemen to service Smith's tractor and connect it to a trailer
in front of the garage. After Smith brought the other men to the garage," Ellis
explained to them that he represented Respondents in the existing labor dis-
pute, and that he was there to get the facts and would like to take statements
from them. Gill spoke up for the union men, saying no statements would be
given by them, that Mr. Moon was their attorney,26 Verl Nickles was the busi-
ness agent of their Union, and they would do any talking or bargaining for the
men, and that Ellis should get in touch with Moon. Raymond Stafford told
the group that business was picking up, and he could use a few more drivers.
He asked Pettet and Bee, as he had Kelley Smith, if they would go back to
work. The three told him in substance that they would be willing to make a
trip any time Respondents needed them, but they would not return to work
steady, preferring to stay with the other union men until the dispute with Re-
spondents over their layoff and the Union's request for a contract was settled.
Raymond Stafford did not offer further to send any of these men on trips that
afternoon. Nor did he offer jobs to any others in the group at that time, either
individually or as a group., Stafford says that, in making offers, he "went down
the line" of drivers (in order of seniority) only as far as he needed drivers for
the day. The company truck-operating records indicate that four truckloads
were sent out August 8, and the trucks were driven by Pheiffer, Shupe, Bell, and
Swearengin ; since Pheiffer had never been laid off, Respondents needed drivers
for only three other trips. While Stafford testified that after Pettet refused the
job offered him, all the others refused to go back to work, it is clear he made
no attempt at that time to go further "down the line" after he failed to get ac-
ceptances from the first four. Gill, Hoy, and Earl Wallace admitted the offers to
Pettet, Bee, and Kelley Smith, but denied that they or other men present re-
24
At the hearing, Carver said he had secured work at a higher rate of pay after his
layoff, and that he did not desire reemployment with Respondents at his former rate
of pay.
w This group included Kelley E. Smith, Frank Smith, Gill, Hoy, Earl Wallace, Pellet,
Bee, and Melvin Bell.
10 William A. Moon, counsel for the Union at the hearing.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceived offers. I find from the above facts that at this meeting on August 8, Re-
spondents made bona fide and -unconditional offers - of reinstatement only to
Carver, Pettet, Bee, and Kelley Smith, which were conditionally accepted by,the
latter three and would clearly have been similarly accepted by Carver if he had
been present" Inasmuch as their acceptance of this offer was conditional upon
recognition of their Union as, bargaining agent, negotiation of a contract and
settlement of the question of their layoff, they assumed the position of strikers,
and Respondents were not obligated to make further offers to them or to rein-
state them unless and until they made unconditional requests for reinstatement. 28
Only Kelley Smith made such a request about a month after his layoff, at
which time Robert Stafford offered him a job as extra driver, to be, assigned
from the "extra" board ; Smith refused the offer because he felt that it ,would
-give him the status of no more than a helper. Respondents have not offered
him reinstatement to his old job since that time. >
Jim Swearengin was reinstated by Respondents on August 8 and was sent out as
a driver that day ; he had been a helper prior to July 31. It is not clear whether
Swearengin was in the group,meeting of August 8, but I find from his testimony
and that of Ellis that sometime after the group of union men left the garage
office, Ellis talked to Swearengin and took a statement from him, having learned
from an earlier conversation with Bee and the latter's statement that Swearengin
had not joined the Union. Thereafter, Raymond Stafford privately offered
Swearengin a job, which he accepted." Later the same day, Raymond Stafford
called Melvin Bell on the -telephone, told him the other drivers had refused to
return, and asked if he wished to come back. Bell said "yes." Raymond asked
him if he had joined the Union, stating he thought Bell might also want to
refuse to return, as the other union men had clone. Bell said he had joined the
Union, and Stafford said that made no difference if he wanted to come back.
Stafford then brought Bell to the garage in his car. Bell drove a load to Madison,
Wisconsin, that afternoon, with Rolline Day, a new man, as his helper. Bell
has worked for Respondents ever since as a driver; prior to July 31 he had been a
helper. Stafford's query as to Bell's affiliation with the Union is, under settled
law, an unlawful interrogation of an employee, and I find that Respondents there-
by violated Section 8 ( a) (1) of the Act.
D. Other interference, restraint, and coercion
I have found above that Respondent Raymond Stafford on August 8 interro-
gated Melvin Bell regarding his union affilation and thereby violated Section 8
(a) (1) of the Act.
On the afternoon of August 8, 1950, following the meeting of the union men
with Attorney Ellis and Raymond Stafford, at which Alva Gill had acted as
spokesman for the group, Gill approached Raymond Stafford, his cousin, in front
of Respondent's office, and asked him for the return of $10 which Gill had loaned
him previously. Stafford replied that he did not have the money at the time.
Stafford then asked Gill if he was about to get the union matter straightened out.
Gill answered that he did not know. Stafford then cursed him, calling him a "no
good s- o- a b-" several times. Gill at once walked away while Stafford was
still cursing him. Stafford gave no plausible explanation for his sudden vilifica-
tion of Gill; it could hardly have been justified by Gill's mere request for repay-
inent of a small loan, especially when, as Gill testified credibly, Raymond had
27 See footnote 24, supra.
28 Cf. N. L. R B. v. Crosby Chemicals, Inc., 188 F. 2d 91 (C. A. 5), enforcing in part
Order in 85 NLRB 791; Wilson & Co , Inc, 77 NLRB 959, 962
29 Swearengin worked for Respondents until November 1950, and them quit.
STAFFORD OPERATING COMPANY 1241
promised he would have the money for him that day. Inasmuch as the vilifica-
tion occurred in the same conversation as Stafford's inquiry about the Union, and
shortly after the meeting of the union men with Ellis, I am persuaded that the
epithet was applied to Gill because of his affiliation with the Union and his leader-
ship of the union men and espousal of the Union in that meeting. I find that
Stafford's interrogation of Gill about the Union was unlawful, and that Respon-
dents thereby violated Section 8 (a) (1) of the Act. I also find that the vilifica-
tion of Gill was a form of intimidation of the latter because of his union activity,
and that Respondents thereby further interfered with, restrained, and coerced an
employee in the exercise of rights guaranteed by Sestion 7 of the Act, in violation
of Section 8 (a) (1) of the Act 30
E. The violation of Section 8 (a) (5)
1. The appropriate unit
The complaint alleges that the appropriate unit consists of Respondents' truck
drivers and helpers, excluding garagemen, livestock order buyers, office' employees,
and supervisors as defined in the Act. Respondents claim the unit should include
the garage employees on the theory that their duties are interchangeable with
those of the drivers and helpers.
The duties of the truck drivers consist principally of the driving of trucks
loaded with livestock to customers' plants, caring for the stock en route, unload-
ing the truck at destination, and driving the truck back to the garage either
empty or with a return load, as directed. For this work the drivers are paid
solely on a mileage basis. Although not specified as part of their regular duties,
the drivers often help the Respondent partners load trucks at the Union Stock-
yards. In addition, in emergencies when the garagemen and servicemen are busy
servicing or repairing other equipment, the drivers volunteer at times to service
their own tractors before a trip so that they can leave on schedule. On the road
the drivers often make minor emergency repairs and adjustments on their trac-
tors, and at times change tires when a service station is not handy for that pur-
pose. When equipment requires major repairs on the road, the drivers are
authorized to have the work done by local mechanics, and are reimbursed for
that expense by Respondents. The drivers receive no pay, other than their usual
mileage pay, for any of the above incidental services. The helpers perform the
same general duties as the drivers, and are paid in the same manner.
On! July 31, 1950, and up to the time of the hearing, Respondents employed
four' men in the garage, all of whom were paid weekly salaries : A mechanic and
assistant mechanic, who maintained, repaired, and overhauled the trucks and
trailers ; a serviceman who services tractors with gasoline, lubricants, etc., for
trips ; and an assistant serviceman who assists the serviceman but primarily
cleans out the trailers and beds them with hay and other covering for the live-
stock. In hiring these employees, Respondents have sought only men with par-
ticular experience in these duties. Prior to July 31, 1950, Respondents infre-
quently used garage employees as helpers on trucks for long trips in rare in-
stances when they could not obtain other drivers or helpers for that purpose.
At times, when a driver had a breakdown on the road with a loaded trailer, a
garageman was sent out to him with a spare tractor which the driver used to
30 These findings are based on the credited testimony of Gill, corroborated in substantial
part by that of Raymond Stafford and Elmer Cox.
In making the above findings of independent violations of Section 8 (a) (1), I place no
reliance on the antiunion remarks made by Raymond Stafford to Rogers , the union agent,
during their only conference on August 2 or 3, 1950, at which no employee was present.
Cf. Everett Van Kleeck & Company, Inc., 88 NLRB 785.
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
haul the load to destination ; the garageman usually performed emergency repairs
on the stalled tractor, and then drove it back to the garage. Both truck drivers,
helpers, and garage employees are supervised by Respondent Robert Stafford.
Respondents concede that driving is not the main duty of the garagemen, but
argue that , since there was no rule preventing garagemen from acting as helpers
or drivers, or the latter from helping out in the garage, there is sufficient evidence
of community of interest and duties, and actual interchange of work, among the
drivers, helpers, and garagemen to warrant their inclusion in a single unit. I
cannot agree for various reasons. In the first place, the facts found above indi-
cate that the interchange of duties was not a common, but an unusual and
infrequent occurrence ; it was the exception, rather than the rule. Second,
garagemen were hired by Respondents on the basis of their experience in that
type of work; their driving ability was apparently not a requisite to such em-
ployment, nor even a factor in their choice. Third, their method of pay differed
from that of the transport employees. Fourth, when Respondents complied with
the Interstate Commerce Commission rules, only drivers and helpers were re-
quired to furnish medical certificates and keep daily trip logs ; there is no proof
that Respondents required garage employees to furnish such certificates before
they acted as helpers on trucks, nor is there any record of logs kept by them
before July 31, 1950. Despite the common supervision, the preponderant factors
of difference in qualifications , duties, manner of compensation , and circumstances
of employment between the transport employees and the garage employees,
together with the lack of substantial interchange in their duties and actual work,
persuade me that there is not sufficient community of interest and similarity of
working conditions between the two groups to warrant their inclusion in a single
unit. In this connection it should be noted that, although the constitution of the
International Union purports to claim jurisdiction over all persons employed
in and around garages, the Local Union had previously ceded jurisdiction over
all garage employees in the geographical area of its jurisdiction to the Inter-
national Association of Machinists , and does not now claim jurisdiction over
Respondents ' garage employees . The record discloses no history of previous
collective bargaining between Respondents and the Union. The Board has found,
under similar circumstances, that truck drivers and helpers have a separate com-
munity of interest, and constitute a typical and traditional grouping of em-
ployees performing a distinct function which warrants their severance from
maintenance employees.'
On the basis of the foregoing facts, I find that a unit comprised of Respondents'
truck drivers and driver-helpers, but excluding garage employees, livestock order
buyers, office employees, and supervisors as defined in the Act, is appropriate for
purposes of collective bargaining, within the meaning of Section 9 (b) of the Act,
and that such unit will assure to Respondents' employees the full benefit of their
right to self-organization and collective bargaining and will otherwise effectuate
the policies of the Act.
2. The Union's majority status
The Respondents' records show, and I find, that on the morning of July 31, 1950,
Respondents had in their employ 14 regular drivers and helpers who comprised
the appropriate unit found above.n I have found that prior to their discrimina-
81 Sidney Myers, Inc., 92 NLRB 112; White-Washburne Co, Inc, 91 NLRB No. 97; Gate
City Transit Lines, Inc., 81 NLRB 79 And compare Tennessee Coach Company, 88
NLRB 253.
82 Charles Wheeler has not been included in the roster of regular employees, as the
records indicate he took only one trip as a student , or extra, driver on or about July 8,
1950, but has not since been employed by Respondents.
STAFFORD OPERATING COMPANY 1243
tory discharge on that date, 11 of this group had applied for membership in the
Union and authorized it to represent them for purposes of collective bargaining.'
Since all of this group were discriminatorily discharged on that date, they retain
their status as employees under the Act, both for purposes of remedy and in
determining the Union's status as representative of the employees in the appro-
priate unit.' I therefore find that on July 31, 1950, and at all times thereafter,
the Union represented 11 out of 14, or a majority, of Respondents' employees in
the appropriate unit, and that the Union was, and is, the exclusive representative
of all employees in said unit for purposes of collective bargaining in respect to
rates of pay, wages, hours of employment, and other conditions of employment,
within the meaning of Section 9 (a) of the Act.
3. The refusal to bargain
On August 1, 1950, the drivers and helpers, who were discriminatorily dis-
charged the day before, advised Nickles, the union business agent, of their dis-
charge. Nickles called Raymond Stafford on the telephone about noon of the
1st, told him the Union represented the discharged employees, and protested
against their termination. Stafford told him he had laid off the men because of
slack business. Nickles questioned that reason, reminding him that he had laid
off four of the oldest men.' After further discussion during which Stafford gave
varying reasons for laying off the older employees , Nickles requested that Re-
spondents recall all the laid-off employees to work, said that he would send his
assistant , John Rogers, to visit Respondents and give them a form of contract to
examine, and suggested that the Union would then work out a contract with
Respondents. Stafford rejected the last suggestion, saying he wanted " no part
of the damn thing."
On the afternoon of August 2 or 3, 1950, Rogers, the assistant business agent
of the Union, conferred with Raymond Stafford at Respondents ' garage. Paul
Brackley, an attorney and customer of Respondents , was present . Rogers identi-
fied himself as the union representative , stated that the Union had signed up
and represented a majority of Respondents' drivers and helpers, and presented
to Stafford a sample "over-the-road" contract of the type the Union negotiated
with trucking concerns ,96 and told Stafford the usual procedure of the Union
was to present a form of contract for the employer to examine , and then to
negotiate with each employer specific terms to fit his particular operations and
situation . Stafford casually paged through the sample contract , which was in
printed pamphlet form, and said it did not look like much of a contract. He
then told Rogers he doubted if the Union represented a majority of Respondents'
employees, as he had laid off some drivers on Monday because of slack business.
He also said he wanted "no part of" the Union, and that before Respondents
used union drivers, he and his brothers would drive the trucks themselves.
' It is well settled , contrary to Respondents contention , that signed applications for
membership In a union which also expressly designate that organization as the applicants'
representative for collective bargaining, are sufficient designations of the union as such
representative , even though the applicants are not full -fledged members of the organization.
The Valley Broadcasting Company, 87 NLRB 1144, and cases cited in footnote at page
1153; Long-Lewis Hardware Company, 90 NLRB 1403; Everett Van Kleeck & Company,
Inc, 88 NLRB 785. The Act requires no specific form of selection of a bargaining agent.
Standard Generator Service Company, of Missouri, Inc., 90 NLRB 790.
34 The Warren Company, Incorporated, 90 NLRB 689 . A discriminatory layoff or dis-
chaige of employees cannot be utilized to alter the status of the bargaining representative
previously selected by the majority of the employees. N. L. R. B. V. Bradford Dyeing
Association, 310 U. S. 318, 340.
ss Carver , Pettet, Bee, and Kelley Smith, as found above.
11 General Counsel 's Exhibit No. 12.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stafford then terminated the interview, and Rogers left the office. As he was
leaving, Rogers told Stafford that if Respondents refused to deal with the Union,
it would take the matter before the Board. The whole discussion was short,
between 5 and 10 minutes . There was no discussion of the sample contract or
Its terms."
After this conference, Nickles tried to contact Raymond Stafford by telephone
several times during August, but was unsuccessful. Stafford never returned
any of his calls.88 The Union never wrote any letters to Respondents regarding
the layoff or requesting further bargaining conferences.
Respondents argued at the hearing that General Counsel had not proven a
violaton of Section 8 (a) (5), because the Union had never made a bona fide
request for collective bargaining, nor shown any proof of its majority status to
Respondents, and never made bona fide efforts to seek to bargain with Re-
spondents, aside from Rogers' initial talk with Raymond Stafford. I cannot
agree with these contentions. In the first place, Rogers' initial statements to
Stafford, coupled with Nickles' remarks to him on the telephone the day before,
sufficiently stated the Union's representative status and amounted to a clear re-
quest to Respondents to bargain with the Union as such representative of their
employees 3° Secondly, the attitude of Raymond Stafford in the conference with
Rogers indicates that his stated doubt as to the Union's status was based only
on his discriminatory layoff of a majority of Respondents' employees a few days
before. This fact, coupled with the definite antiunion animus displayed in his
remarks to Rogers, persuades me that Respondents' doubt as to the Union's
majority status was not bona fide, but rather an outgrowth of their antiunion
animus and conduct, and motivated by a desire to avoid collective bargaining
and to thwart their employees' acts of self-organization. In such circumstances,
the Union was not required to prove its majority status." Furthermore, the
adamant antiunion attitude displayed by Raymond Stafford both to Nickles and
Rogers clearly indicated the futility of further attempts to seek bargaining con-
ferences, and the Union was not required to make repeated futile attempts to
secure further audiences with Respondents for that purpose.
On the basis of the above facts, I conclude, and find, that Respondents have
refused since August 3, 1950, to bargain collectively with the Union as the ex-
clusive representative of the employees of Respondents in the appropriate unit,
with respect to rates of pay, wages, hours of employment, and other conditions
of employment in violation of Section 8 (a) (5) of the Act, and that by such
refusal Respondents have further interfered with, restrained, and coerced their
employees in the exercise of rights guaranteed in Section 7 of the Act, in violation
of Section 8 (a) (1) of the Act.
87 These findings are based on the credited testimony of Rogers , as corroborated in part
by that of Raymond Stafford and Paul Brackley.
111 do not credit Raymond Stafford's testimony that he invited Nickles out for a con-
ference the day after Rogers ' visit, that he made special arrangements to be paged if
Nickles came in , or that he waited after hours for Nickles to visit him . His professed
anxiety to confer with Nickles , in a startling reversal of form after his discriminatory
discharges of July 31 and his cavalier treatment of Rogers on August 2 or 3, strains one's
credulity , and impels the belief that he was fabricating his story for the occasion.
39 A demand for recognition as statutory representative need not be formal or express,
but may be inferred or implied from statements or conduct . Joy Silk Mills, 85 NLRB
1263, enforced 185 F. 2d 732 (C. A. D. C ).
90 Everett Van Kleeck & Company, Inc., 88 NLRB 785 , 787. Furthermore , any seeming
loss of the Union ' s majority status would not justify Respondents ' refusal to bargain, where
the loss was due to their unfair labor practices Franks Bros Company v . N. L. R B.,
321 U S. 702.
STAFFORD OPERATING COMPANY 1245
F. The unilateral wage increases
The Respondents ' records 11 establish, and I find, that prior to July 31, 1950,
they had been paying their drivers and helpers at the following rates per round
trip :
Driver alone, loaded one way, 31/2 cents per mile.
Driver and helper, loaded one way, 3 cents per mile to driver, and 11/2 cents
to helper.'
Driver, loaded both ways, 5 cents per mile
Driver and helper, loaded both ways, 3.75 cents per mile to driver, and 2.25
cents per mile to helper.
Robert Stafford testified that after July 31, 1950, the pay of helpers was raised
to 2 cents a mile, loaded one way. The truck expense records show that: J. R.
Wallace, a garageman, received 2 cents a mile as helper on 2 trips to Lafayette,
Louisiana, during the week of August 14; Harvey Smith, a new employee, re-
ceived the same pay for a trip to Dallas, Texas, as helper to Gower on August
2; Floyd Potter was paid 2 cents a mile for a trip on August 10 to Dubuque,
Iowa, as helper to Skeeter Gardner. Stafford also testified that after July 31
the pay of drivers and helpers, for trips loaded both ways, was raised to 4
cents for the driver, and 3 cents for the helper. The records, however, show that:
On August 1, Pheiffer made a trip to Dubuque, Iowa, with Melvin Haney us
helper, for which Pheiffer was paid 31/z cents a mile; Haney apparently received
no pay for the trip other than his weekly salary as a garageman ; Pheiffer re-
ceived the same rate of pay for a trip on August 8 to Albuquerque, New Mexico,
with Haney as helper ; Haney received no mileage pay for this trip. On August
7, Walter Shupe made a trip to Dubuque. Iowa, with J R. Wallace as helper,
for which Shupe received 31/2 cents a mile; Wallace, a garageman, received no
mileage pay. There is no proof that Respondents discussed any of the above
increases in rates of drivers and helpers with the Union. By granting such uni-
lateral pay increases to employees after the Union had attained its status as
their exclusive bargaining representative. Respondents were ignoring such rep-
resentative and dealing instead with individual employees respecting a usual
subject of collective bargaining. Under settled law, such conduct is an inde-
pendent violation of Section 8 (a) (5) of the Act; in addition, unilateral deal-
ing with individual employees to the exclusion of their statutory bargaining
agent is calculated to interfere with and coerce them in their guaranteed rights
of self-organization and bargaining through representatives of their own choos-
ing, and constitutes a violation of Section 8 (a) (1) of the Act48
41 Ifi making findings herein as to the rates of pay and total salaries of drivers and
helpers for any trip or period, I have credited only the original records kept by Robert
Stafford in the form of operating expense books for each truck, and the original notations
made by him at the top of the check stubs in the check book from which he wrote pay
checks for those employees. The record makes it clear that these are the only accurate
records reflecting the true mileage pay earned by drivers and helpers before deductions
for taxes, advancements, and credits for expenses on the road. I make no findings in this
respect from the journal records kept by Ruth Stafford, or summaries compiled therefrom,
because the salary figures kept in those records showed the net amounts due and paid the
drivers, after all debits and credits for taxes, advancements, and road expenses; they
do not reflect accurately the gross mileage pay of'each driver per trip or for any period.
112 There were some variations in these rates, as where the driver made a private arrange-
ment to give his helper a half cent of his pay, so that the driver received 2% cents a mile,
the helper 2 cents a mile.
42 The Valley Broadcasting Company, 87 NLRB 1144.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFEOT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in Section III, above, occurring in
connection with the operations of Respondents described in Section I, above,
have a close, intimate, and substantial relationship to trade, traffic, and com-
merce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondents engaged in certain unfair labor practices, I
will recommend that they cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
I have found that Respondents discriminated against Carl Carver, Dale Bee,
Leland Pettet, Alva C. Gill, Duwane Hoy, Kelley E. Smith, Frank Smith, Harry
E. Stiles, Earl Wallace, Walter Shupe, Melvin Bell, and Clyde Thomas Swear-
engin by discharging them, and by denying reinstatement to all but Carver,
Pettet, Bee, Shupe, Bell, and Swearengin, because of their concerted activity and
actual or suspected affiliation with the Union, a labor organization, thereby
discouraging membership in that organization. It will be recommended that
Respondents offer to each of said employees, who has not been offered rein-
statement or actually reinstated, immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority and other
rights and privileges, and that Respondents make each of the above employees,
including each previously reinstated or offered reinstatement, whole for any
loss of pay he may have suffered by reason of Respondents' discrimination against
him. It is recommended that the loss of pay for each employee be computed on
the basis of each separate calendar quarter or portion thereof during the period
from Respondents' discriminatory action to the date of actual reinstatement or
a proper offer of reinstatement, as the case may be.'° The quarterly periods,
hereinafter called "quarters," shall begin with the first day of January, April,
July, and October ; loss of pay shall be determined by deducting from a sum
equal to that which each employee would normally have earned for each quarter
or portion thereof, his net earnings,46 if any, in other employment during that
period ; earnings in one particular quarter shall have no effect upon the back-pay
liability for any other quarter. It is also recommended that Respondents be
" Kelley Smith should be offered reinstatement, because he requested reinstatement about
a month after his layoff, and was turned down by Respondents. He is entitled to back pay
from the date of his discharge, July 31, 1950, to August 8, 1950, when lie refused reinstate-
ment, and also from the date of his subsequent request for reinstatement to the date of
a proper offer of reinstatement. See Volney Felt Mills, Inc., 70 NLRB 908, enforced 162'
F. 2d 204 (C. A 2) ; McGough Bakeries Corporation, 58 NLRB 849, enforced as modified,
153 F. 2d 40 (C. A. 5). Carver, Pettet, and Bee are not entitled to further offers of
reinstatement unless and until they make unconditional applications for work, and they
are not entitled to back pay from August 8, 1950, until such application for reinstatements.
See cases cited above.
45 By "net earnings" Is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where, which would not have been incurred but for this unlawful discrimination, and the-
consequent necessity of his seeking employment elsewhere. Crossett Lumber Company,.
8 NLRB 440. Monies received for work performed upon Federal, State, county, municipal,
or other work-relief projects shall be considered earnings . Republic Steel Corporation.
v. N. L. R. B., 311 U. S. 7.
STAFFORD OPERATING COMPANY 1247
ordered to make available to the Board upon request payroll and other records
to facilitate the checking of the amount of back pay due.'°
I have also found that Respondents refused to bargain collectively with the
Union as the exclusive representative of their employees in the appropriate unit
described above. I will therefore recommend that Respondents bargain col-
lectively with the Union, upon request, as the exclusive representative of the
employees in said unit , and, if an understanding is reached , embody such under-
standing in a signed agreement.
The number and variety of unfair labor practices found above clearly indicates
that Respondents have been and are disposed to defeat concerted activity and
self-organization among their employees by any conceivable means, and that
Respondents are fundamentally hostile to the purposes of the Act. There is
a likelihood that Respondents may resort in the future to similar or related un-
fair labor practices proscribed by the Act. The preventive purposes of the Act
will be thwarted unless the recommendations herein and the Board's order are
coextensive with the threat. I will therefore recommend that Respondents
cease and desist from in any manner infringing upon the rights of employees
guaranteed by Section 7 of the Act.
On the foregoing findings of fact and the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, General Drivers, Warehousemen and Helpers Local No. 245,
A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of the
employees, livestock order buyers, office employees, and supervisors as defined
unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. All truck drivers and driver-helpers of Respondents, excluding garage
employees, livestock order buyers, office employees, and supervisors as defined
in the Act, constitute a unit appropriate for purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
4. The Union named above was on July 31, 1950, and at all times thereafter,
the exclusive representative of all employees in the aforesaid unit for purposes
of collective bargaining within the meaning of Section 9 (a) of the Act.
5. By their refusal to bargain collectively with the Union as the exclusive
representative of their employees in said unit, Respondents have engaged in and
are engaging in unfair labor practices within the meaning of Section 8 (a) (5)
of the Act.
6. By the above discrimination and refusal to bargain , as well as by other
conduct found above, Respondents have interfered with , restrained , and coerced
their employees in the exercise of rights guaranteed by Section 7 of the Act, and
have thereby engaged in and are engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
. 7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
41 F. W. Woolworth Company, 90 NLRB 289.