Thomas Brothers Wholesale Produce

National Labor Relations Board - Board Decisions

Sep 27, 1948

79 N.L.R.B. 982 (N.L.R.B. 1948)

In the Matter of D. D. THOMAS AND A. E. THOMAS, DOING BUSINESS
UNDER THE NAME AND STYLE OF THOMAS BROTHERS WHOLESALE
PRODUCE and INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF-
FEURS, WAREHOUSEMEN & HELPERS OF AMERICA , LOCAL UNION No.
171, A. F. of L.
Case No. 5-C-2123.-Decided September 27, 194.8
DECISION
AND
ORDER
On November 20, 1946, Trial Examiner Maurice M. Miller issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of his
Intermediate Report attached, hereto. - Thereafter, the Respondents
filed exceptions to this Intermediate Report.
- On July 9, 1947, Trial Examiner John H. Eadie issued his Supple-
mental Intermediate Report in the proceeding, finding that the Re-
spondents had engaged in and were engaging in certain additional
unfair labor practices, and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of his Intermediate Report attached hereto. Thereafter, counsel for
the Board filed exceptions to this Intermediate Report and a support-
ing brief.'
The Board 2 has reviewed the rulings of the Trial Examiners at both
hearings, and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered both Inter-
3 On July 14, 1948, the Board advised the parties that it was rescinding its prior grant of
the Respondents ' request for oral argument , and that, in lieu thereof , a supplemental brief
or written argument might be filed within 20 days. No such brief or argument has been
received.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as
amended, the National Labor Relations Board has delegated its powers in connection with
this proceeding to a three-man panel consisting of the undersigned Board Members [Chair-
man Herzog and Members Murdock and Gray].
79 N. L. R. B., No. 121.
982
THOMAS BROTHERS WHOLESALE PRODUCE 983
mediate Reports, the exceptions thereto, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of each Trial Examiner, with the additions and modifications
hereinafter set forth.3
1. We agree with Trial Examiner Miller that the settlement agree-
ment, because of the unfair labor practices that followed it, does not
preclude a finding that the Respondents had previously engaged in
unfair labor practices. We relyon the threatening and coercive state-
ments of D. D. Thomas, the letters polling the employees with respect
to their designation of the Union, the refusal to bargain collectively
with the Union, the Respondents' unilateral announcement of the
vacation plan, and DeHaven's discriminatory discharge.
2. We agree with Trial Examiner Miller that the Respondents vio-
lated Section 8 (1) of the Act. We do not, however, rely upon the
opinions expressed by A. E. Thomas and D. D. Thomas.4
3. We agree with Trial Examiner Miller that the Respondents,
by their unfair labor practices, dissipated the Union's majority. We
rely particularly upon the threatening and coercive statements of
D. D. Thomas, to the effect that he would sell his trucks and secure-
the services of contract haulers rather than deal with the Union.
4. Trial Examiner Eadie found that the Respondents discriminato-
rily discharged DeHaven, in violation of Section 8 (1), (3), and (4)
of the Act. Particularly in the absence of exceptions by the Re-
spondents, we agree with this conclusion. Unlike the Trial Exam-
iner, however, we find that DeHaven was discharged solely because
of his union activity and his testimony in the earlier proceeding
against the Respondents. It is true that DeHaven showed certain
undesirable characteristics as an employee. But he did not change
in this respect throughout his tenure of almost 2 years as an employee
of the Respondents, and he was nevertheless not discharged before
engaging in union activity. Under these circumstances and in view of
the Respondents' other unlawful anti-union conduct, we find that De-
Haven was discharged because he was a prominent union adherent
and had testified as a Board witness in the earlier case against the
Respondents, which Trial Examiner Miller had decided adversely
to them on the day before his discharge.
The Trial Examiner , because of his finding as to DeHaven's unde-
sirability, did not recommend reinstatement or back pay for him.
Counsel for the Board excepted. We have found, contrary to the-
Trial Examiner, that DeHaven was not discharged because he may
8 The provisions of Section 8 (1),. (3), (4), and- (5 ) of the National Labor Relations Act,
which the Trial Examiners herein found were violated, are continued in section 8 (a) (1),
( 3), (4), and ( 5) of the Act , as amended.
4Matter of The Bailey Company, 75 N. L. R. B. 941.
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in some respects have been an undesirable employee. Furthermore,
his alleged undesirability was not such as to render him surely unfit
for further employment by the Respondents. We therefore find that
to deny him reinstatement and restoration of earnings would be to
leave the effects of his unlawful discharge by the Respondents in-
completely remedied, and thus defeat the policies of the Act. Ac-
cordingly, we shall not adopt the Trial Examiner's recommendation,
but shall, in conformity with our practice in similar cases,5 order the
Respondents to offer DeHaven reinstatement and to make him whole,
except for the period between the date of the Intermediate Report
and the date of our Order herein.6
k-
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, D. D. Thomas
and A. E. Thomas, doing business under the name and style of Thomas
Brothers Wholesale Produce, Roanoke, Virginia, and their agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
Local Union No. 171, A. F. of L., as the exclusive representative of all
their truck drivers, helpers, and warehousemen, excluding manage-
ment representatives, office employees, and supervisors, with respect
to grievances, labor disputes, rates of pay, wages, hours of employment,
and other terms and conditions of employment;
(b) Discouraging Membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local
Union No. 171, A. F. of L., or in any other labor organization of their
employees, by discharging and refusing to reinstate any of their em-
ployees, or in any other manner discriminating in regard to their hire
and tenure of employment or any term or condition of their employ-
ment ;
(c) Discharging or otherwise discriminating against any employee
because he has given testimony under the Act;
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to form
5 See Matter of Tualatin Valley Cooperative , Incorporated, 72 N. L. R. B. 907 ; Matter of
The Life Insurance Company of Virginia, 65 N. L. R. B. 1140; Matter of Carl L. Norden,
Inc., 62 N. L. R. B 828.
See, e. g., Matter of Bermite Powder Company, 66 N. L. R. B. 678 ; Matter of Colgate-
Palmolive-Peet Company, 70 N. L . R. B 1202.
THOMAS BROTHERS WHOLESALE PRODUCE • 985
labor organizations, to join or assist International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local
Union No. 171, A. F. of L., or any other labor organization, to bargain
collectively through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
Local Union No. 171, A. F. of L., as the exclusive representative of all
their truck drivers, helpers, and warehousemen, excluding manage-
ment representatives, office employees, and supervisors, with respect to
grievances, labor disputes, rates of pay, wages, hours of employment,
and other terms and conditions of employment, and if an understand-
ing is reached, embody such understanding in a signed agreement;
(b) Offer Clifford DeHaven immediate and full reinstatement to
his former or a substantially equivalent position, without prejudice
to his seniority or other rights and privileges; 7
(c) Make Clifford DeHaven whole for any loss of pay suffered be-
cause of the Respondents' discrimination against him, by payment to
him of a. sum of money equal to the amount which he normally would
have earned as wages during the periods (1) from the date of his dis-
charge to July 9,1947, the date of Trial Examiner Eadie's Intermediate
Report herein, and (2) from the date of our Decision and Order herein
to the date of the Respondents' offer of reinstatement, less his net earn-
ings during said periods; 8
(d) Post at their office and place of business at Roanoke, Virginia,
copies of the notice attached hereto and marked "Appendix A." 9
Copies of said notice, to be furnished by the Regional Director for the
Fifth Region, shall, after being duly signed by the Respondents or
' In accordance with the Board 's consistent interpretation of the term, the expression
"former or substantially equivalent position" Is intended to mean "former position wher-
ever possible , but if such position is no longer in existence , then to a substantially equiva-
lent position ." See Matter of The Chase National Bank of the City of New York, San
Juan, Puerto Rico , Branch, 65 N. L. R. B. 827, 829.
s 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 than for the Respondents , which would not have been incurred but for the unlawful
discrimination and the consequent necessity of his seeking employment elsewhere. See
Matter of Crossett Lumber Company , 8 N. L. R. B. 440. Monies received for work per-
formed upon Federal , State, county , municipal , or other work-relief projects shall be con-
sidered as earnings See Republic Steel Corporation v. N. L. R. B , 311 U. S. 7.
1In the event that this Order is enforced by decree of a Circuit Court of Appeals, there
shall be inserted before the words : "A DECISION AND ORDER" the words : "A DECREE
OF THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING."
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their representative, be posted by the Respondents immediately upon
receipt thereof, and maintained by them for sixty (60) consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondents to insure that said notices are not altered,
defaced, or covered by any other material ;
(e) Notify the Regional Director for the Fifth Region in writing,
within ten (10) days from the date of this Order, what steps the
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
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Local Union No. 171, A. F. of L., or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection.
WE WILL NOT discharge or otherwise discriminate against any
employee because he gives testimony in a proceeding under the
National Labor Relations Act.
WE WILL OFFER to the employee named below immediate and
full reinstatement to his former or a substantially equivalent posi-
tion without prejudice to any seniority or other rights and privi-
'leges previously enjoyed, and make him whole for any loss of
pay suffered as a result of the discrimination against him in the
manner provided for in the Order.
Clifford DeHaven
WE WILL BARGAIN collectively upon request with the above-
named Union as the exclusive representative of all employees in
the bargaining unit described herein, with respect to grievances,
rates of pay, wages, hours of employment, and other terms and
conditions of employment, and if an understanding is reached,
embody such understanding in a signed agreement. The bargain.
ing unit is :
THOMAS BROTHERS WHOLESALE PRODUCE 987
All truck drivers, helpers, and warehousemen, excluding man-
agement representatives, office employees, and supervisors.
All our employees are free to become or remain members of the
above-named Union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
D. D. THOMAS AND A. E. THOMAS,
doing business under the name and style of
THOMAS BROTHERS WHOLESALE PRODUCE,
Employer.
Dated---------------------- By--------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Messrs. Charles B. Slaughter and Harold M. Weston, for the Board.
Mr. Robert S. Guerrant, of Roanoke, Va., for the respondents.
Mr. A. B. Barber, of Roanoke, Va., for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on October 19, 1946, by the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
Local Union No. 171, affiliated with the American Federation of Labor, herein
designated as the Union, the National Labor Relations Board, herein called the
Board, by its Regional Director for the Fifth Region (Baltimore, Maryland),
issued a complaint dated October 19, 1946, against D. D. Thomas and A. E.
Thomas, doing business under the name and style of Thomas Brothers Whole-
sale Produce, Roanoke, Virginia, herein called the respondents, alleging that
the respondents had engaged in and were engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1) and (5) and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act, Copies of the complaint and amended charges, accompanied by notice
of hearing, were duly served upon the respondents and the Union.
With respect to the unfair labor practices the complaint, as amended at the
hearing, alleged in substance: (1) that the respondents, on or about January
3O, 1946, and at all times thereafter, refused to bargain collectively with the
Union as the exclusive representative of their employees in an appropriate unit,
although the Union had been designated as their representative by a majority
of such employees on or about January 26, 1946; and (2) that the respondents,
on various occasions since November 1, 1945, had (a) informed their employees
individually of their refusal to bargain with the Union, in an effort to persuade
and coerce the employees aforesaid not to join or assist the Union, (b) urged,
,persuaded , and threatened their employees with economic reprisal if the employees
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
joined or assisted the Union or continued their activity on its behalf, (c) ques-
tioned employees about their union membership, (d) conducted a poll among their
employees to determine whether or not the employees had renounced their inter-
est in the Union, (e) compelled employees, by misrepresentation and other means,
to divulge information about their membership in the Union, and (f) effected
unilateral changes in working conditions without consulting the employees or
their exclusive bargaining agent; and (3) that the respondents, by the course
of conduct aforesaid, had interfered with, restrained, and coerced their employees
in the exercise of the rights guaranteed by the Act.
Thereafter, on October 23, 1946, the respondents filed an answer in which
they admitted that the Union was a labor organization within the meaning of
Section 2 (5) of the Act, but denied the jurisdictional allegations of the complaint
and further denied the commission of any unfair labor practices. The answer
further alleged, by way of affirmative defense, that the respondents, on May 10,
1946, had executed an agreement in settlement of earlier charges filed with the
Board ; that the respondents, pursuant to the terms of the settlement agreement,
had agreed to bargain with the Union and did bargain thereafter in good faith ;
and that the respondents had continued to bargain with the Union until they
learned that various employees had- resigned from that organization, and that
a majority of their employees no longer desired the Union to act as their bar-
gaining agent.
Pursuant to notice a hearing was held at Roanoke, Virginia, on November 4,
1946, before the undersigned, Maurice M. Miller, the Trial Examiner duly desig-
nated by the Chief Trial Examiner. The Board and the respondents were
represented by counsel and the Union by a field representative. All parties
participated in the hearing, and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence pertinent to
the issues. At the close of the testimony counsel for the Board, the respondents,
and the Trial Examiner informally discussed the issues. Counsel for the Board
then presented a motion to conform the pleadings to the proof with respect to
formal matters. There was no objection, and the motion was granted. In
response to inquiry, the parties were advised that briefs or proposed findings
and conclusions, or both, might be filed with the undersigned within 5 days after
the close of the hearing. A brief has been received from counsel for the
respondents.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
D. D. Thomas and A. E. Thomas, a partnership doing business under the
name and style of Thomas Brothers Wholesale Produce, maintain an office and
place of business in the City of Roanoke, Virginia, from which they operate a
business primarily devoted to the wholesale distribution and sale of agricultural
produce. The respondents own and operate a farm at McClellanville, South
Carolina, and three trucks employed primarily for delivery of the agricultural
produce which they sell. The trucking operation, with which this proceeding
is primarily concerned, is devoted essentially to the transportation of agricul-
tural produce from the farm operated by the respondents to their market facilities
in Roanoke, and to various dealers in agricultural produce at Roanoke, Virginia,
THOMAS BROTHERS WHOLESALE PRODUCE 989
Baltimore Maryland , and Philadelphia , Pennsylvania . During the slack season
on their farm, when the trucks are not engaged primarily in the transportation
of produce from South Carolina, the respondents, upon occasion, send their trucks
to Pennsylvania, Maryland and other States, where produce is purchased for
resale in Roanoke and elsewhere . In addition , the respondents employ their
trucks to transport produce for other dealers to Baltimore and Philadelphia.
During the calendar year of 1945, the trucks owned and operated by the respond-
ents were employed to transport produce valued in excess of $50,000, of which
$35,000 represents produce transported from their South Carolina farm to
market facilities in Roanoke and elsewhere.
The respondents concede, for the purpose of this proceeding , that they are
engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Local Union No. 171, is a labor organization affiliated with the
American Federation of Labor, which admits to membership employees of the
respondents.
III. THE UNFAIR LABOR PRACTICES
A. The general course of the unfair labor practices
The first experience of the respondents with any form of union activity oc-
curred, according to the record, in November of 1945. At some time during
the mouth in question, on a date which does not appear in the record, Clifford
De Haven, a truck driver for the respondents, who had been a member in good
standing of the Union local at Charleston, West Virginia, and who held a with-
drawal card from that organization, drove a truckload of produce for the re-
spondents to Philadelphia, Pennsylvania, for sale to a produce dealer in that
city. Upon his arrival in Philadelphia, De Haven testified, he was informed by
a representative of the Union local in that city that he would be required to
produce satisfactory evidence of his membership in the Union before the de-
livery of the produce on his truck. De Haven was unable to produce his with-
drawal card, and was informed forthwith that he would have to join the
Philadelphia local of the Union. He replied that he would be unable to pay
the required fee, which amounted to $29, but was advised that this amount
could be secured from the Philadelphia dealer who intended to accept delivery
of the produce on the truck. Arrangements for the settlement of De Haven's
obligation were completed on this basis, and the Philadelphia dealer subsequently
remitted to the respondents a check in payment for the produce delivered by
De Haven, deducting therefrom the sum of $29 which had been delivered to the
Philadelphia local of the Union.
According to the credited testimony of De Haven, A. D. Thomas, who main-
tained the office and warehouse of the respondents in Roanoke, received the
story of what had occurred with an outburst of profane and explosive anger.
The testimony of De Haven with respect to the remarks of A. E. Thomas on
this occasion need not be detailed here. It is sufficient to note that Thomas,
in substance , delivered himself of several profane remarks with respect to labor
organizations and the Democratic Party, stated with emphasis that he would
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refuse to permit any union to tell him what to do, and concluded with an
expression of his desire to mount machine guns on his trucks and "blow the damn
union people to hell."'
At some time during the weeks which followed De Haven became an active
member of the Union local in Roanoke.' Almost immediately thereafter, he
undertook to solicit membership on behalf of the Union among employees of the
respondents, a group which then included three drivers and one warehouse
helper employed in Roanoke.'
On January 29, 1946, the respondents were advised by letter from A. B. Barber,
local representative of the Union, that the Union represented a majority of their
employees and desired a conference for the discussion of a collective agreement.
De Haven, although absent from Roanoke when A. E. Thomas received the letter,
testified credibly that he had been informed thereafter by Harold Minter, a
fellow driver, about the manner in which the letter from the Union had been
received. According to the witness, Minter, in the presence of A. E. Thomas,
informed him that Thomas had expressed his opinion of De Haven, who had not
been responsible for the letter at all, in vigorous and profane terms. Thomas,
according to De Haven, made no attempt to deny or explain the statements
attributed to him by Minter.`
The respondents never answered the letter. Subsequently, on April 25, 1946,
the Union filed with the Board a charge of refusal to bargain. According to a
stipulation received at the hearing, the charge was investigated by a Field
Examiner of the Board, who conducted an informal card check on or about the
10th of May and reported immediately to the parties that his investigation
had revealed a Union majority on that date in a unit agreed upon as appropriate
for collective bargaining. On the same date, and apparently as a result of the
investigation, the respondents executed a settlement agreement in which they
agreed to post a notice, for the information of all their employees, declaring their
intention to abide by the principles of the Act, and to bargain collectively with
the Union, upon request 6
Pursuant to the provisions of the agreement, three collective bargaining con-
ferences were held by the parties within the weeks which followed the 10th of
1 A. E. Thomas denied at the hearing that he had expressed himself in anger, and testi-
fied instead that he had merely commented that payment of a union fee on behalf of De
Haven had turned an otherwise profitable transaction into one which involved a loss.
while the undersigned considers it likely that a comment to this effect by Thomas formed a
part of the conversation, the testimony of De Haven with respect to the overall attitude
expressed by Thomas, and the manner of its expression, is credited by the undersigned.
According to the recollection of DeHaven, Harold Minter, a fellow driver, and the indi-
vidual then employed as a warehouse helper, were present at the time. His testimony to
that effect was not denied by Minter.
2 There is no indication that the respondents ever received a refund of the fee which had
been paid on behalf of De Haven to the Philadelphia local of the Union.
6 At or about this time, according to the record, the respondents also utilized the services
of a contract hauler, Jesse Hambrick, and his helper, John Kingery, who transported prod-
uce for the respondents on a truck owned by the former. There is no contention in the
instant case that Hambrick and Kingery were employees of the respondents.
* Thomas and Minter both denied at the hearing that the former had expressed himself
with profanity upon receipt of the Union's request for recognition, and further denied that
Minter had ever repeated the comments of the former to De Haven. Upon the entire rec-
ord, and from his observation of the witnesses, the undersigned credits De Haven.
6It was stipulated at the hearing that the notice in question was posted immediately
upon approval of the agreement by the Regional Director, and that the terms of the settle-
ment agreement with respect to the period of posting were complied with by the respondents.
THOMAS BROTHERS WHOLESALE PRODUCE 991'
May. The first of these conferences was held on the 13th of May. It was
attended by A. E. Thomas acting on behalf of the respondents, Robert Guerrant,
their attorney, A. B. Barber, local representative of the Union, and Clifford De
Haven. The Union submitted a proposed agreement at once. A. E. Thomas,
however, read the proposal and rejected it forthwith, stating, according to the
credited testimony of Barber, that he would rather "die" than sign an agreement
of the type proposed by the Union.
Immediately after the conference on the 13th of May, A. E. Thomas asked
Harold Minter to carry a copy of the proposed agreement to D. D. Thomas in
South Carolina. Minter and De Haven traveled together on the trip. Accord-
ing to the accredited testimony of the latter the proposed agreement was delivered
to D. D. Thomas by Minter immediately upon their arrival at the farm. That
evening, while Minter and De Haven were in the tourist cabin which they
occupied while at the farm, D. D. Thomas came to the cabin and, in the presence
of Minter, De Haven, Hambrick and Kingery, cursed the Union, stated forcefully
that unions were not going to run his business, announced that he would rather
sell his trucks and secure the services of contract haulers to transport the
produce of the respondents, and stated further that he did not intend to sign the
proposed agreement'
De Haven, the only witness called by the Board aside from A. E. Thomas,
could recall no other occasion on which the respondents had expressed themselves
to employees with respect to their attitude about the Union and its proposal for
a contract.
On or about June 8, 1946, Minter and Mattox, another driver for the respondents,
at the admitted suggestion of the former, prepared a letter which they jointly
signed and dispatched to the local office of the Union, enclosing their dues books
in that organization, and stating specifically that they desired to revoke their
previous designation of the Union as their bargaining agent!
A. E. Thomas learned of the action taken by Minter and Mattox shortly there-
after.' On June 21, 1946, therefore, Robert S. Guerrant, attorney for the
respondents, without any prior consultation with the Union, dispatched a letter
to each of the drivers and the single warehouse helper then employed by the
respondents, in which he referred to information received by A. E. Thomas that'
some of the employees had resigned from the Union. He advised the employees
of their right to self-organization under the Act, but went on to point out that
the respondent had a right to know whether the Union actually represented a
majority of their employees. The letter therefore went on to request that the
employees advise the writer, by return mail, with respect to their current
relationship to the Union.
6 Minter denied that he had carried the contract to D. D . Thomas, and said that Snead,
another driver , had done it. He could recall no conversation about it. Snead could not
recall the incident at all. The undersigned credits De Haven.
! Upon direct examination Minter testified that his action in this connection had not
been motivated by any statements of the respondents , and insisted instead that he had
resigned because of his accidental discovery at the local office of the Union that De Haven
had been appointed a shop steward for the employees of the respondents , and was not
required to pay dues for his membership in the organization . The undersigned is satisfied
that this was in fact the case, and that Minter had acquired information to this effect before
his resignation from the Union . Upon the entire record however , and for the reasons noted
hereinafter, the undersigned is not convinced that the incident cited by Minter and the in-
formation acquired as a result provided the principal motivation for his' action.
8 Thomas testified that he had overheard a conversation in the Roanoke office of the re-
spondents , in the course of which Minter declared to Mattox and Snead , another driver,
his intention to resign from the Union.
'992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
De Haven made no response. On June 22, 1946, however, Minter prepared a
letter for himself, and one for Mattox, in which the attorney was advised that
they had previously resigned their membership in the Union, and had revoked
its authority to bargain on their behalf. Snead, who had been hired in the
spring of the year and joined the Union immediately thereafter, also dispatched
a letter to that organization, 2 days later, similarly enclosing a dues book and
revoking his earlier designation of the Union as his collective bargaining agent.
In addition, Snead advised the attorney for the respondents, as Minter and Mat-
tox had done, that he had resigned from the Union and had revoked his earlier
designation! Hugh Martin, who was then employed as the warehouse helper
of the respondents, also dispatched a letter written for him by Minter to coun-
sel for the respondents, in which he advised the latter that he had never been
a member of the Union, and had never authorized it to bargain for him.
Upon the receipt of these replies to his earlier letter of inquiry, counsel for the
respondents advised the Union by letter, on June 26, 1946, that it no longer rep-
resented a majority of the employees. The respondents, therefore, refused to
bargain further with any representative of that organization. There have
been no further bargaining conferences between the parties.
In the latter part of July, on a date which does not appear in the record, A.
E. Thomas, according to his undenled and credited testimony, informed the
employees involved herein that they would be permitted to take vacations with
pay beginning forthwith. Each of the drivers, Snead excepted, according to
Thomas, was to receive 2 weeks' vacation, with pay equivalent in amount to
that received for a 40-hour week, while Snead, who had the least seniority, was
to receive a single week's vacation, with pay computed in similar fashion.
Thomas admitted that paid vacations had never been given regularly to the
employees, and that 1946 was the first year in which this privilege was ex-
tended to all of them. He admitted further that the vacation plan, as an-
nounced, was substantially identical with a plan which had been tentatively
agreed upon before the suspension of negotiations between the respondents and
the Union, but stated that their decision to grant vacations had been made with-
out immediate consultation between the respondents and the Union, or their
employees.
B. Concluding findings
1. The effect of the earlier settlement agreement
Although the respondents raised no question, at the hearing or in their brief,
as to the current significance of the agreement, previously signed by the parties
and approved by the Board, in which they had agreed to bargain with the Union,
settlement agreements of the type involved herein raise substantial questions
of administrative discretion, since they require the Board to determine whether
the earlier action of its agents should preclude the present consideration of events
which preceded the settlement agreement.
Any extended review of the cases in which this problem has been considered
is not required here. It is sufficient to note that, in one of the earliest cases
in point, the Board has clearly established the principle that "effective admin-
istration of the Act requires that the Board's agents have the respect and con-
fidence of labor organizations and employers with whom their work brings them
9 Minter admitted that he had also written the letter in question for Snead.
THOMAS BROTHERS WHOLESALE PRODUCE 993
into contact," and refrained accordingly from any consideration of alleged
unfair labor practices which antedate the execution of a settlement agreement
approved by agents of the Board30 In cases too numerous to cite, the principle
thus enunciated has continued to guide the discretion of the Board. The later
cases, however, have seen the development of a corollary rule, and when settle-
ment agreements are urged to preclude consideration of a respondent's prior
conduct, the Board has bottomed its application of the rule upon a finding that
the respondent has not, in fact, engaged in conduct thereafter which constituted
a "continuation or resumption" of the earlier unfair labor practices. Where
the record discloses that the settlement agreement or other adjustment has not
accomplished its intended purpose, because the employer has continued to engage
in the unfair labor practices proscribed by the Act after the execution of the
agreement, the Board has consistently held that it will disregard the agreement
and consider the entire course of conduct by the respondent, both before and
after its execution, as the basis for its conclusions and the determination of an
appropriate remedy. Its practice in this respect has been recognized by the
courts as one which is properly within the sphere of the Board's administrative
discretion ; and the undersigned finds it to be decisive in the instant case.
Although several of the statements by A. E. Thomas and D. D. Thomas, found
herein to constitute interference, restraint, and coercion with respect to their
employees, were made before the settlement agreement was executed, the record
establishes to the satisfaction of the undersigned that D. D. Thomas thereafter
expressed his opinion of the Union and its proposed agreement before the em-
ployees in a manner calculated to convey the impression that the respondents
intended to resist their obligation to bargain with that organization. This ex-
pression, as noted hereinafter, constituted a substantially persuasive factor in
the subsequent decision by a majority of the employees to revoke their designa-
tion of the Union as their bargaining agent. It constituted, therefore, a "con-
tinuation or resumption" of the unfair labor practices which antedated the
settlement agreement. Such conduct on the part of the respondents, together
with the subsequent poll of the employees with respect to their union sentiments,
reveals the continued existence of a settled purpose to prevent the enjoyment by
employees of the rights guaranteed by the Act. The undersigned, therefore,
concludes and finds that the unfair labor practices which followed the settlement
agreement are such as to require an examination of the entire course of conduct
undertaken by the respondents, in order to determine an appropriate remedy,
to protect employees from unfair labor practices, and to effectuate the purposes
of the Act.
2. Interference, restraint, and coercion
Upon the entire record, the undersigned concludes and finds that the re-
spondents first revealed their attitude of opposition to the Union by the profane
reaction of A. E. Thomas, in November of 1945, to the news that its Philadelphia
local had required the payment of a membership fee for De Haven from funds
which were properly due the respondents. In finding that the expressions of
A. E. Thomas on this occasion constituted interference, restraint, and coercion
of his employees, the undersigned does not intend to imply condonation of the
procedure whereby the respondents were deprived of a sum which was right-
fully theirs. The action of the Philadelphia local, at least upon the facts revealed.
10 Shenandoah-Dives Mining Company, 11 N. L. It. B. 885.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the present record, appears to have been entirely unwarranted and arbitrary.
The resentment of the respondents , therefore , was both understandable and jus-
tified . The sentiments expressed by A. E. Thomas , however, were more than a
mere expression of resentment . They contained a threat which was reasonably
calculated to convince those who heard him that the respondents possessed a fixed
antipathy to unions in general ; so construed , the statements in question con-
stituted an unwarranted invasion by the respondents of that area within the
field of employer -employee relations which the Act was designed to protect from
employer interference , and the undersigned so finds.
The manner in which the respondents received the request of the Union for
recognition and a collective agreement , considered in conjunction with their
subsequent failure to reply, must be considered equally indicative of their attitude
toward labor organizations in general , the Union in particular , and their statu-
tory obligation to bargain . The coercive effect of such a sustained refusal to
bargain is too well established in the decisions of the Board to require elaboration
here. The action of D. D . Thomas in rejecting the proposed agreement oilered
by the Union, and his comments about the Union in this connection , served to
emphasize anew the attitude which the respondents had expressed before, and
must be considered equally coercive . The effect on the employees , noted herein-
after, cannot be dismissed as immaterial.
The respondents contend that the statements attributed to them can be
explained , and should be excused , because of their lack of formal-education,
their sustained pre-occupation with the business of earning a living, their ignor-
ance of the Union ' s program , and the general attitude of distrust with respect to
so-called "outside" organizations which they shared with others in the particu-
lar community and social group of which they were a part. This contention is
without merit. Although it must be admitted that such determinative factors
as education , environment and experience do condition the reaction of indi-
viduals to any social situation , the recognition of this fact cannot excuse a
deviation from the standard of conduct accepted and enforced by the commu-
nity as a whole , in the form we know as law. It is no defense to a charge of
unfair labor practices to argue that the respondents, in making anti-union state-
ments, were merely "doing what comes naturally ." Upon the entire record,
therefore , the undersigned concludes and finds that by their statements in dis-
paragement and villification of the Union, by their repeated forceful expressions
of intention to resist the performance of their obligation under the statute, by
conducting a poll of their employees to determine whether the employees had
renounced their interest in the Union, and by the extension to their employees
of a prearranged vacation plan without consultation between them and the
designated bargaining agent of their employees, the respondents have interfered
with, restrained and coerced their employees in the exercise of rights guaranteed
by the Act.
3. The refusal to bargain
a. The appropriate unit
The complaint , in substance, alleges that all truck drivers, helpers and ware-
housemen employed in connection with the operations of the respondents , except
for management representatives , office employees and supervisory personnel with
authority to hire, promote, discharge , discipline or otherwise effect changes in
THOMAS BROTHERS WHOLESALE PRODUCE 995
the status of employees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining. The record shows, and the
undersigned finds, that all of the persons employed within the appropriate unit
thus defined devote all but an insignificant portion of their time to the perform-
ance of duties within the scope of the bargaining unit. Although it was denied
in the answer of-the respondents that the group of employees thus defined-con-
stituted an appropriate unit, no evidence has been offered to indicate that it was
inappropriate for the purposes of collective bargaining, or to establish the appro-
priateness of any alternative unit. The undersigned finds that the group of
employees described above constituted, at all times material herein, and now
constitute, a unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9 (b) of the Act, and that such unit will insure to em-
ployees of the respondents the full benefit of their right to self-organization
and collective bargaining, and otherwise effectuate the policies of the Act.
b. Representation by the Union of a majority in the appropriate unit
The complaint alleges, and the record shows, that on January 29, 1946, the
Union requested the respondents to bargain collectively with it as the exclusive
bargaining agent of employees within the appropriate unit. On the date in
question, and until an undetermined date in May of 1946, that unit included three
individuals employed as drivers, and one employed as a warehouseman or ware-
house helper at the respondents' place of business.
Although the respondents deny the majority status of the Union, the record
is barren of any indication, that its majority status was questioned at the time
of its request for recognition. On the 10th of May, in connection with the in-
vestigation of the earlier 8 (5) charge, an agent of the Board verified the
,majority status of the Union within the appropriate unit by an informal cross-
check of the Union records against the pay roll of the respondents. The latter
accepted this determination as conclusive, and agreed to post a notice affirming
their intention to bargain. By their acceptance of the settlement agreement
which closed the earlier case the respondents effectively conceded that on the
date of the agreement at least, if not before, the Union had been designated by
a majority of their employees within the appropriate unit as their collective
bargaining agent, and the undersigned so finds. A subsequent change in senti-
ment, however, on the part of three drivers out of four then employed by the
respondents dissipated the Union's majority shortly thereafter. It is this fact
upon which the respondents rely to excuse their admitted refusal to bargain.
The ultimate contention of counsel for the Board is based in substance upon
the argument that the disappearance of the Union's majority was due in principal
measure to the antecedent unfair labor practices already noted. The respond-
ents, on the other hand, contend essentially that the testimony of Minter, who
admitted that his decision to renounce the Union had provided the impetus for
similar action by others, revealed that his motivation was to be found in a
factor related to the internal organization of the Union, and beyond the control
of the respondents. Minter testified, in substance, that his decision to withdraw
from the Union was made when he learned that DeHaven had been recognized
as a Union steward and that his activities in this connection excused him from
the payment of dues and carried with them certain additional privileges with
respect to seniority. He admitted, also, that his decision to withdraw from
the union, allegedly motivated by this information, was communicated by him
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Mattox and Snead , the remaining drivers employed by the respondents ex-
clusive of De Haven.
The explanation of Minter with respect to his motivation, considered apart
from the other circumstances noted in this report, contains some elements of
plausibility. In this connection, however, the undersigned notes that Minter
had been employed by the respondents for a period of approximately 7 years,
except for a period of service in the Merchant Marine. Although he admitted
no substantial degree of friendship with the respondents, it is clear that he was
on good terms with both of them, and had accompanied them on hunting and
fishing trips at various times in the past. Minter further admitted that Union
organization of the employees had created an "uproar" which he found disturb-
ing. The undersigned is convinced and finds that Minter's reaction to the Union,
despite his protestations as a witness, was principally conditioned by his friendly
attitude toward the respondents and the identification of his interest with theirs."
Specifically, the undersigned finds that Minter's renunciation of the Union, and
his effort to persuade other employees to similar action, were primarily due to
the conviction, created by the earlier statements of A. E. Thomas and reaffirmed
by the explosive reaction of D. D. Thomas to the proposed agreement, that
insistence by the Union upon the execution of a contract with the respondents
ran counter to the desires to the latter, and would substantially alter his
friendly relationship with them.
Upon this view it follows, and the undersigned finds, that the majority status
of the Union has been dissipated primarily because of the unfair labor practices
found. Board and court decisions too numerous to cite establish clearly that
the obligation of the respondents to bargain became fixed upon the request of
the Union for recognition, after it had secured the membership applications of a
majority within the appropriate unit. This obligation to bargain was recog- ,
nized and accepted by the respondents when they executed the settlement agree-
ment. Upon the basis of established precedent, the obligation must be considered
effective and unimpaired, regardless of any subsequent defection from the Union,
when the record establishes, as it does in the instant case, that the Union majority
was dissipated as the result of unfair labor practices attributable to the
respondents."
The undersigned finds that on May 10, 1946, and at all times thereafter, the
Union was the duly designated representative of a majority of the employees in
the unit herein found appropriate for collective bargaining. By virtue of Section
9 (a) of the Act, the Union has been at all times material herein, the exclusive
representative of all employees in the aforesaid unit for the purposes of collective
11 Minter testified , for example , that he had not realized when he joined the Union that
its activities "would involve Mr. Thomas ," and only learned thereafter from De Haven of
the "trouble" the Union could cause . At one point in his testimony , the witness stated
specifically :
I figured like this, I am very well satisfied with where I work, the way I am being
treated there , so I just didn ' t want no party ( sic) trying to make enemies.
The undersigned regards this statement as the most apt expression of the change in
Minter's attitude toward the Union after the respondents had expressed themselves in the
manner noted in this report '
22 Even if it be assumed , for the purposes of argument , that the conduct of the respondents
after the execution of the settlement agreement did not involve any unfair labor practice,
and that the defection of their employees from the Union, therefore, could not be attributed
to any conduct in violationFof the Act, it might well be argued, nevertheless, that the
respondents , under the circumstances of the present record, can not be heard to question
the prior designation of the Union , or to justify their conduct in breaking off negotiations
by citation of the fact that the organization in question had lost its majority status.
THOMAS BROTHERS WHOLESALE PRODUCE 997
bargaining, with respect to rates of pay, wages, hours of work, or other conditions
of employment.
c. The refusal to bargain
The respondents do not deny that, on June 26, 1946, their attorney advised
the Union they no longer intended to bargain with that organization. The
Board has consistently held that when a union has been certified, after a Board-
directed election, as the duly designated bargaining agent of employees in an
appropriate unit, or when its representative status has been determined by means
of a consent election, it retains that representative status for a reasonable time
thereafter, normally a year. During this period neither a substantial turnover
among the employees in the appropriate unit, nor an attempt on their part to
revoke the designation of their representative, is considered sufficient to justify
an employer's refusal to bargain with the representative. See for example,
Matter of Appalachian Electric Power Company, 47 N. L. R. B., 821, enf'd 140
F. (2d) 217 (C. C. A. 4) and Matter of The Century Oxford Manufacturing
Corporation, 47 N. L. R. B. 835, enf'd 140 F. (2d) 541 (C. C. A. 2).
Upon the facts of the present record, particularly in the light of the settle-
ment agreement and the notice posted pursuant thereto, a substantially similar
question arises.
The Board, in a recent decision, Matter of Joe Hearin, Lumber, 66 N. L. R. B.
1276, held that the decisional rule now under discussion could not be applied
when the determination of representatives had been made on the basis of a con-
sent card check, finding that the card check did not reflect the true desires of
employees with the same degree of certainty as an election by secret ballot. In
a supplemental decision, however, 68 N. L. R. B. 150, the Board made it clear that
a consent card check may be effectively used to establish the desires of employees
with respect to representation whenever that method of determination, as re-
quired by the present rules and regulations of the Board, is accompanied by ap-
propriate measures designed to insure an adequate opportunity for the presenta-
tion of objections by interested parties, and thereby insures that the card check
accurately reflects the considered desires of employees.
The rule in question might well be considered determinative here. The
undersigned notes that a determination of the Union's majority status in the
instant case was made by a Field Examiner of the Board in connection with his
investigation of the earlier charge that the respondents had refused to bargain.
His determination in this connection was accepted by the respondents at the
time ; and an appropriate notice, designed to acquaint the employees with the
acceptance by the respondents of their obligation to bargain, was posted by the
respondents in accordance with the terms of the settlement agreement already
noted. In circumstances such as these, the Board might well hold that the
determination of the Field Examiner is entitled to the same conclusive effect as
that normally given to the certification of representatives after a Board-directed
election, or a determination of representatives based upon the consent procedure
sanctioned by the Act. Counsel for the Board, however, advanced no argument
based upon this view. The undersigned therefore, although noting the possible
application of the decisional rule aforesaid to the facts of the instant case, makes
no finding to that effect herein. The undersigned finds that the respondents,
on June 26, 1946, and at all times thereafter, have refused to bargain collectively
with the Union as the exclusive representative of their employees in an appro-
priate unit, and that the respondents by such conduct have interfered with,
restrained, and coerced their employees in the exercise of rights guaranteed
by the Act.
809095^49-vol. 79-64
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The conduct of the respondents set forth in Section III, above, occurring in
connection with the operations of their partnership described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and such of them as have been found to be unfair labor
practices tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondents have engaged in unfair labor
practices, it will be recommended that they cease and desist therefrom, and take
certain affirmative action designed to effectuate the policies of the Act, and to
restore as nearly as possible the status quo existing before the commission of the
unfair labor practices found.
The respondents have refused to bargain collectively with the Union as the
exclusive representative of their employees in an appropriate unit. Although
it appears that the resignation of Minter, Mattox, and Snead from the Union,
and their revocation of its authority to bargain for them, destroyed the majority
status of the Union at some time before the actual refusal of the respondents to
bargain, this alteration of circumstances, for reasons set forth elsewhere in this
Report, cannot be considered sufficient to nullify the obligation of the respondents.
Unfair labor practices of the type revealed by the present record, although not
sufficiently numerous to indicate a deliberate campaign designed to undermine
the Union, were clearly sufficient, under the circumstances of this case, to
accomplish that objective. Repeated statements in vilification of the Union,
accompanied by declarations that the respondents did not intend to execute
an agreement with that organization, regardless of the motivation for such
statements, tend to disrupt the morale of employees, to restrain their organi-
zational activity, and to discourage their adherence to labor organizations. Even
if it be assumed, therefore, that the action of Minter, Mattox, and Snead consti-
tuted effective revocation of their previous designation, the undersigned finds
that this defection in the ranks of the Union was caused by the unfair labor
practices of the respondents. In the light of all the circumstances, this action
by the employees cannot be regarded as an uncoerced expression of their will;
and even assuming further that the employees who sought to abandon the Union
were motivated in part by factors other than the discouraging effect of the
unfair labor practices attributable to the respondents, any attempt to disentangle
the other factors from the unfair labor practices found is impossible, as long
as the unfair labor practices in question remain unremedied by the respondents 13
Upon this posture of the case, any requirement that the Union maintain a
numerical majority among the employees after the commission of unfair labor
practices would permit the respondents to profit from the natural result of
their wrongful conduct and thereby defeat the purposes of the Act.14 It will,
therefore, be the purpose of the recommendation herein to restore as nearly
11 Cf. N. L. R. B. v. Remington, Rand, Inc., 94 F. ( 2d) 862, 872 (C. C. A. 2), cert. denied
304 U. S 575.
14 See Franks Brothers Company v. N. L R B , 321 U. S 702, affirming 137 F. (2d) 989
(C. C. A 1), enforcing 44 N L. R. B. 898, N. L. R. B. v. Bradford Dyeing Association,
310 U. S. 318
THOMAS BROTHERS WHOLESALE PRODUCE 999
as possible the status quo which prevailed on the date of the agreement to
bargain accepted by the respondents. In order to effectuate the purposes of
the Act, accordingly, the undersigned will recommend that the respondents,
upon request, bargain collectively with the Union as the exclusive representative
.of their employees in the appropriate unit as found.
The attitude of the respondents to union organization, as revealed throughout
the course of their contacts with the Union, discloses, despite the limited number
of incidents involved, a definite purpose to defeat self-organization among their
employees. The fact that the incidents in question were widely separated in
time cannot deprive them of significance. They serve, rather, to demonstrate
the persistence of an anti-union attitude, sufficient to require the application by
the Board of the broadest powers conferred by the Act. The statements of A. D.
'Thomas and D. D. Thomas, in sum, with respect to the Union and the agreement
which it offered, provided a clear indication that they possessed no real in-
tention to accept their obligation under the statute, and served effectively to
convey the impression that the interests of their employees would best be served
.by a repudiation of the Union. The subsequent conduct of the respondents in
the course of collective bargaining provides no real evidence of a change in the
attitude previously assumed by them. Instead, the readiness with which they
accepted and acted upon an indication that the Union had lost its majority
status, and their subsequent effort to poll the employees in this connection serves
as a further indication of their desire to avoid the obligation to bargain, and
-reflects a determination generally to interfere with, restrain, and coerce their
employees in the exercise of rights guaranteed by the Act, despite their apparent
disclaimer of any such intention in the letter addressed to their employees.
Because of their unlawful conduct, and the underlying attitude of opposition
,to the purposes of the Act revealed thereby, the undersigned is convinced that
the unfair labor practices found are closely related to the other unfair labor
practices proscribed by the Act, and that a danger of their commission in the
future is to be anticipated from the conduct of the respondents in the past1b
The preventive purposes of the Act may be frustrated unless the order of the
Board is coextensive with the threat. In order therefore to make effective the
interdependent guarantees of Section 7, to prevent a recurrence of unfair labor
practices and thereby minimize industrial strife which burdens and obstructs
commerce, and thus to effectuate the policies of the Act, the undersigned
will also recommend that the respondents cease and desist from interfering
with, restraining, or coercing their employees in any other manner, in the
.exercise of the rights guaranteed by the Act.
On the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAw
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Local Union No. 171, affiliated with the American Federation
of Labor, is a labor organization within the meaning of Section 2 (5) of the
Act.
2. All truck drivers, helpers, and warehousemen employed in connection with
the business of the respondents, except for management representatives, office
11 N. L R B. v. Express Publishing Company, 312 U. S. 426, 437; May Department Stores
Company v. N. L. R. B., 326 U. S. 376.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, and supervisory personnel with authority to hire, promote, discharge,
discipline or otherwise effect changes in the status of employees, or effectively
recommend such action, constitute a unit appropriate for the purposes of
collective bargaining, within the meaning of Section 9 (b) of the Act.
3. International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Local Union No. 171, affiliated with the American Federation
of Labor, was on May 10, 1946, and at all times thereafter, the exclusive represen-
tative of all employees in the aforesaid unit for the purposes of collective bar-
gaining, within the meaning of Section 9 (a) of the Act.
4. By refusing on June 26, 1946, and at all times thereafter, to bargain collec-
tively with International Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, Local Union No. 171, affiliated with the American Federa-
tion of Labor, as the exclusive representative of all their employees in the ap-
propriate unit, the respondents have engaged in and are engaging in unfair labor
practices within the meaning of Section 8 (5) of the Act.
5. By interfering with, restraining, and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section 8
(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondents, D. D. Thomas and A. E. Thomas,
doing business under the name and style of Thomas Brothers Wholesale Produce,
Roanoke, Virginia, their agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, Local Union No. 171,
A. F. of L, as the exclusive representative of all truck drivers, helpers, and ware-
housemen employed in connection with the business of the respondents except
for management representatives, office employees, and supervisory personnel
with authority to hire, promote, discharge, discipline, or otherwise effect changes
in the status of employees, or effectively recommend such action, in respect to
rates of pay, wages, hours of work and other conditions of employment ;
(b) In any other manner interfering with, restraining, or coercing their em-
ployees in the exercise of their rights to self-organization, to form labor organi-
zations, to join or assist International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Local Union No. 171, A. F. of L., or any
other labor organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request bargain collectively with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local Union No.
THOMAS BROTHERS WHOLESALE PRODUCE 1001
171, A. F. of L., as the exclusive representative of all truck drivers, helpers, and
warehousemen employed in connection with the business of the respondents ex-
cept for management representatives, office employees, and supervisory personnel
with authority to hire, promote, discharge, discipline, or otherwise effect changes
in the status of employees, or effectively recommend such action, with respect
to rates of pay, wages, hours of work, and other conditions of employment, and if
an understanding is reached, embody such understanding in a signed agreement ;
(b) Post at their office and place of business at Roanoke, Virginia, copies of
the notice attached hereto marked "Appendix A." Copies of the said notice, to
be furnished by the Regional Director for the Fifth Region, after being duly
signed by the respondents, shall be posted by the respondents immediately upon
receipt thereof and maintained by them for sixty (60) consecutive days there-
-after in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the respondents to insure
that said notices are not altered, defaced, or covered by any other material;
(c) File with the Regional Director for the Fifth Region on or before ten (10)
days from the date of the receipt of this Intermediate Report, a report in
writing setting forth in detail the manner and form in which the respondents
have complied with the foregoing recommendations.
It is further recommended that unless the respondents notify the said Regional
Director in writing on or before ten (10) days from the receipt of this Inter-
mediate Report that they will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondents to
take the action aforesaid.
As provided in Section 203.39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel
for the Board may, within fifteen (15) days from the date of service of the
order transferring the case to the Board, pursuant to Section 203.38 of said
Rules and Regulations, file with the Board, Rochambeau Building, Washington
25, D. C., an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record
or proceeding (including rulings upon all motions or objections) as he relies
upon, together with the original and four copies of a brief in support thereof ;
and any party or counsel for the Board may, within the same period, file an
original and four copies of a brief in support of the Intermediate Report. Im-
mediately upon the filing of such statement of exceptions and/or briefs, the party
or counsel for the Board filing the same shall serve a copy thereof upon each of
the other parties and shall file a copy with the Regional Director. Proof of
service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.65. As further provided in said Section 203.39,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of service of the order transferring the case to the Board.
Dated November 20, 1946.
MAURICE M. MILLER,
Trial Examiner.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, LOCAL UNION No. 171,
A. F. OF L., or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection.
All our employees are free to become or remain members of this union, or
any other labor organization.
WE WILL BARGAIN collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit de-
scribed herein with respect to rates of pay, hours of employment or other
conditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is :
All truck drivers, helpers, and warehousemen employed in connection with
the business of the respondents, except for management representatives,
office employees, and supervisory personnel with authority to hire, promote,
discharge, discipline or otherwise effect changes in the status of employees,
or effectively recommend such action.
D. D. THOMAS and A. E. THOMAS,
doing business under the name and style of
THOMAS BROTHERS WHOLESALE PRODUCE,
Employer.
Dated------------------- By---------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Charles B. Slaughter, for the Board.
Mr. Robert S. Guerrant, of Roanoke, Va., for the respondent.
Mr. John M. Goldsmith, of Radford, Va., for the Union.
STATEMENT OF THE CASE
Upon a supplement to an amended charge having been duly filed by Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Local Union No. 171, A. F. of L., herein called the Union, the National
Labor Relations Board, herein called the Board, upon motion of its Regional
Attorney for the Fifth Region (Baltimore, Maryland), issued an order, dated
April 7, 1947, reopening the record in the above-entitled matter and authorizing
the issuance of an amendment to the complaint.' Pursuant to the Board's
1 The original hearing in this matter was held before a Trial Examiner on November 4,
1946. The Trial Examiner issued his Intermediate Report on November 20, 1946, in which
he found that the respondent had engaged in unfair labor practices within the meaning
of Section 8 (1) and ( 5), and Section 2 (6) and ( 7) of the Act.
THOMAS BROTHERS WHOLESALE PRODUCE 1003
order, the Regional Director for the said Fifth Region issued an amendment to
the complaint, dated April 8, 1947, against D. D. Thomas and A. E. Thomas,
doing business under the name and style of Thomas Brothers Wholesale Produce,
herein called the respondent, alleging that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (1), (3) and (4) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. Copies of the Board's order, the
amendment to the complaint, and notice of further hearing were duly served
on the respondent and the Union.
With respect to the unfair labor practices, the amendment to the complaint
alleges in substance that the respondent on and after November 4, 1946, ostracized
and discriminated against Clifford DeHaven, discharged him on or about
November 30, 1946, and since has failed and refused to reinstate him to his
former or substantially equivalent position, because of his membership in and
activities on behalf of the Union, and for the additional reason that he gave
testimony in a proceeding under the Act on November 4, 1946.
On or about April 14, 1947, the respondent filed an answer to the amendment
to the complaint wherein it denied the commission of any unfair labor practices
and alleged, in substance, that Clifford DeHaven was discharged for cause.
Pursuant to notice, a hearing was held at Roanoke, Virginia, on April 21, 1947,
before the undersigned Trial Examiner, duly designated by the Chief Trial
Examiner. The Board, the respondent and the Union were each represented
by counsel. All parties participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses and to introduce evidence bear-
ing on the issues was afforded all parties .2
At the conclusion of the evidence, counsel for the Board moved to conform the
pleadings to the proof as to formal matters such as names and dates. The mo-
tion was granted without objection. Counsel for the Board and the respondent
presented oral argument before the undersigned at the close of the hearing. All
parties were afforded an opportunity to file briefs or proposed findings of fact
and conclusions of law, or both. Counsel for the respondent has filed a brief with
the undersigned.
Upon the entire record in the case and from his observation of the witnesses, the
undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT 2
D. D. Thomas and A. E. Thomas, a partnership doing business under the name
and style of Thomas Brothers Wholesale Produce, maintain an office and place
of business in the City of Roanoke, Virginia, from which they operate a business
primarily devoted to the wholesale distribution and sale of agricultural produce.
The respondents own and operate a farm at McClellanville, South Carolina, and
three trucks employed primarily for delivery of the agricultural produce which
2 Pursuant to a stipulation by and between counsel for all parties the deposition of John,
William Gingery, a witness for the respondent , was taken on May 10, 1947.
8 The facts found in Section I and Section II herein were not in issue or litigated in the
instant proceeding . They are based upon the record of the afore -mentioned hearing con-
ducted before a Trial Examiner of the Board on November 4, 1946, and upon his Inter-
mediate Report thereof. At that hearing the respondent admitted that the Union was a
labor organization within the meaning of Section 2 (5) of the Act, and that the respondent
was engaged in commerce within the meaning of the Act.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they sell. The trucking operation, with which this proceeding is primarily
concerned, is devoted essentially to the transportation of agricultural produce
from the farm operated by the respondents to their market facilities in Roanoke,
and to various dealers in agricultural produce at Roanoke, Virginia, Baltimore,
Maryland, and Philadelphia, Pennsylvania. During the slack season on their
farm, when the trucks are not engaged primarily in the transportation of produce
for South Carolina, the respondents, upon occasion, send their trucks to Penn-
sylvania, Maryland and other States, where produce is purchased for resale in
Roanoke and elsewhere. In addition, the respondents employ their trucks to
transport produce for other dealers to Baltimore and Philadelphia. During the
calendar year of 1945, the trucks owned and operated by the respondents were
employed to transport produce valued in excess of $50,000, of which $35,000 rep-
resents produce transported from their South Carolina farm to market facilities
in Roanoke and elsewhere.
II. THE ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Local Union No. 171, is a labor organization affiliated with the Ameri-
can Federation of Labor, which admits to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The discharge of Clifford DeHaven.
Excepting a period from about February to about November 1945, during which
time DeHaven was sick, he was employed as a truck driver by the respondent
from about January 1945, until discharged on November 30, 1946. At some time
prior to April 1946, he joined the Union and thereafter he was the most active
of the respondent's employees on behalf of the Union. He was appointed as shop
steward of the Union about April or May 1946, and testified as a witness for the
Board at the hearing held on November 4, 1946.
On November 5, or the day after the above-mentioned hearing, DeHaven was
sent to the respondent's farm at McClellanville, South Carolina. He returned
to Roanoke from this trip on about November 8 and was not sent out on any more
trips from that time until he was discharged.' After DeHaven returned from
South Carolina, neither A. E. Thomas nor any of the respondent's employees
would speak to him. This condition prevailed until DeHaven was discharged on
November 30 by A. E. Thomas.' DeHaven reported for work each day, but was
not assigned to any work by Thomas ; and DeHaven did not volunteer to do any
work. Thomas at times requested the employees, including the truck drivers, to
help him sort produce or to load or unload trucks. Such requests were made to
4 It appears that the respondent ' s business was slack at the time mentioned above.
However, the evidence indicates that the respondent 's other truck drivers, Minter and
Snead, each made at least several trips during this period of time.
It appears that all other employees who were members of the Union resigned from it
prior to November 1946. DeHaven testified credibly that no one would speak to him when
he returned on November 8 and that thereafter he did not attempt to speak to the other
employees. Shortly after November 8, DeHaven arranged for the purchase of a new truck
for the respondent . Thomas spoke to DeHaven some few times concerning necessary
details involved in the purchase, but otherwise Thomas did not speak to him until the date
of discharge . Thomas did not deny DeHaven 's testimony in this respect.
THOMAS BROTHERS WHOLESALE PRODUCE 1005
the employees as a group and were not made to individuals. DeHaven did not
help in this work and remained idle until his discharge.'
Conclusions
The respondent's reasons for DeHaven's discharge are stated in its answer as
follows :
The respondent furthermore alleges that the said Clifford DeHaven failed
to perform the duties required of him in the ordinary course of his employ-
ment while employed by the respondent ; that the said Clifford DeHaven was
on several occasions rude to the respondent's customers to the extent of
cursing them in the presence of said customers and out of the presence of said
customers ; that the said Clifford DeHaven was disloyal to the respondent ;
that he was progressively sulky, and his manner toward his employers was
insolent, contemptuous, cantankerous, and disagreeable ; that the said Clif-
ford DeHaven was continually late in reporting to work after having been
warned about it and that, by his individual acts, words, deeds, individually
and collectively cumulative in their nature, thoroughly warranted the respond-
ent's action in discharging him within the meaning of the Act.
In support of its contentions the respondent adduced evidence showing that
DeHaven had arguments with a Mr. Hardman of Orange Grove, Florida, from
whom the respondent purchased fruit, and with a Mr. Rhodes of Kroger Grocery
and Baking Company, a Roanoke concern and one of the respondent's customers.
It appears that the argument with Hardman took place at some time in 1945.
The record does not indicate the time of the argument with Rhodes, excepting
that it took place "way before" the hearing on November 4, 1946. While the
undersigned does not consider the facts concerning these arguments material,
due to the remoteness of the incidents from the time of discharge, nevertheless it
does conclusively appear that DeHaven, at least in the instance of Hardman,
acted in the best interests of his employer.'
Employee Minter testified that at a meeting between A. B. Barber, secretary-
treasurer of the Union, DeHaven and himself the possibility of a strike was dis-
cussed; that when Minter inquired as to what would happen if the respondent
used other drivers to break the strike, DeHaven replied, "Well, we will just let
him get over on the mountain somewhere and just drop a stick of dynamite" ;
and that, shortly after he [Minter] resigned from the Union in June 1946, he
DeHaven testified credibly that throughout his employment he at times did odd jobs,
such as hand trucking in Roanoke , sorting produce , and loading or unloading trucks; but
that without exception he only did such jobs when Thomas specifically requested him to do
so. Thomas in his testimony indicated that he requested DeHaven in person to perform
such work after November 8, but his testimony in this respect is too vague and indefinite
for a finding to be made . It is undisputed that sometime in September 1946 , DeHaven
refused a request by Thomas that he report to work at 5 a . m. in order to help unload a
trnrk. DeHaven usually reported for work at about 8 or 9 a. in.
' Neither Hardman nor Rhodes was called as a witness at the hearing. Hardman was
also referred to as Shine and_ Robinson in the record. DeHaven testified that his argu-
ment with Hardman arose when he refused to accept some inferior fruit; that he reported
the facts to the respondent ; and that the respondent approved of his actions Minter, a
witness for the respondent, testified that at Thomas' instructions he talked to Hardman
during a trip to Florida in the fall of 1945, that Hardman admitted that the trouble was
caused by DeHaven's refusal to accept the fruit; and that he [Minter] reported the
conversation to Thomas.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reported DeHaven's threat to Thomas' Thomas testified, in substance, that he
did not discharge DeHaven at the time when he first learned of this and other
charges upon the advice of counsel.' Regardless of the truth or falsity of this
charge against DeHaven, the fact remains that it was reported to Thomas. If
Thomas was satisfied as to the truth of the charge, it unquestionably constituted
grounds for the immediate dismissal of DeHaven.
As to the respondent's reason for not assigning DeHaven to any trips after
November 8, 1946, the respondent contends in substance that this was mainly due
to the fact that DeHaven abused its equipment while on the trip to South
Carolina. As related above, DeHaven was on this trip from November 5 to 8.
John Kingery, an independent truck driver hired by the respondent to make a
special trip to its farm at the time mentioned herein, testified that while returning
from the respondent's farm he met DeHaven who was on his way to the farm ;
that DeHaven turned his truck around and chased him for about 15 miles before
catching and stopping him ; that DeHaven then talked to him about the Union ;
and that upon his return to Roanoke he reported these facts to Thomas 1° As
in the case of the above-related threat concerning dynamite, the truth or falsity
-of the instant charge is not conclusive. The fact remains that it was reported to
Thomas.
As noted above, it is the testimony of Thomas that he did not discharge
DeHaven after learning of this and other charges upon the advice of counsel.
In this connection it is noteworthy that DeHaven was discharged on or about
the same day or the day after Thomas learned of the Trial Examiner's findings
on the hearing held on November 4, 1946.
The fact that neither Thomas nor the employees would speak to DeHaven
after his return from South Carolina convinces the undersigned that DeHaven's
adherence to the Union entered into the respondent's determination to discharge
him. The employees' actions in this connection clearly were inspired by the
respondent. The only possible cause for such an attitude on the part of Thomas,
in the undersigned's opinion, was his resentment of the Union and DeHaven's
adherence thereto. Especially is this so since DeHaven testified as a witness
for the Board at the hearing on November 4, and it was immediately thereafter
that he was ostracised. It is true that he refused to do odd jobs unless specifically
requested to do so by Thomas and that he did not volunteer to help out in the
work. DeHaven clearly believed that his job called for driving trucks and
Both DeHaven and Barber denied that any threat such as the above was made by
DeHaven. However, DeHaven admitted that during a conversation with a Mr Wimmer;
with whom DeHaven was living at the time, he [DeHaven] referred to a dynamiting
incident involving an employer in Roanoke ; and that he mentioned this incident while they
were discussing the question of whether or not the respondent would agree to recognize or
sign a contract with the Union. His statement to Wimmer in this connection clearly was
an indirect threat to the respondent. Under the circumstances the undersigned is con-
vinced that DeHaven made the statement attributed to him by Minter, or some similar
statement. It is uncontradicted that DeHaven made threatening statements in several
other instances. In his testimony concerning one such statement DeHaven stated that he
was "joking" when he made it.
9 The first unfair labor practice charge of the Union against the respondent was filed
with the Board on April 25, 1946.
30 Concerning this incident DeHaven testified to the effect that he did not chase Kingery ;
that they both stopped within "sight" after recognizing one another on the road ; that he
turned his truck around and pulled up behind Kingery's ; and that it was the custom of
truck drivers to stop and talk when they met on the road.
THOMAS BROTHERS WHOLESALE PRODUCE 1007
nothing else, and he did not hestitate to make this clear to Thomas. Further,
DeHaven admitted that early in his employment with the respondent he refused
to accompany Truck Driver Snead on trips and so advised Thomas.
The undersigned, however, does not believe that the above facts caused the
sudden ostracism of DeHaven, since it appears that he had the same attitude
throughout his employment with the respondent. Nor does the undersigned
believe that DeHaven's attitude in this respect, standing alone, would have caused
the respondent to discharge him. In this connection it appears that Thomas
put up with DeHaven's attitude without at any time reprimanding or warning
him. w
Although as stated above the undersigned believes that DeHaven's adherence
to the Union and giving testimony under the Act substantially entered into the
respondent's determination to discharge him, nevertheless the undersigned is
convinced and finds that the respondent was also motivated in part by other
considerations. From a small employer's viewpoint DeHaven was without
doubt an undesirable employee. It conclusively appears that he did not get
along with his fellow employees and was uncooperative in the work. There-
fore, the undersigned is convinced that Thomas, having in mind DeHaven's
general undesirability as an employee, his abusive treatment of equipment, his
threat to damage the respondent's property, and his adherence to the Union,
decided to discharge him.
Accordingly, since DeHaven's activities on behalf of the Union substantially
influenced Thomas in discharging him, the undersigned finds that the respondent
discriminatorily discharged DeHaven on November 30, 1946.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
. Having found that the respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that one of the substantial reasons for the respondent's dis-
charge of Clifford DeHaven on November 30, 1946, was because of his activities
on behalf of the Union and for the additional reason that he gave testimony in
a proceeding under the Act on November 4, 1946. It will therefore be recom-
mended that the respondent cease and desist from such unfair labor practices.
It will not be recommended, however, that the respondent offer DeHaven rein-
statement or make him whole, in view of the undersigned's above findings to the
effect that DeHaven threatened to dynamite the respondent's equipment and
because in other respects he was an undesirable employee. In view thereof
the undersigned finds that it will not effectuate the policies of the Act to order
DeHaven's reinstatement or to make him whole for any loss of pay.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following :
CONcLusIONs OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Local Union No. 171, A. F. of 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 Clif-
ford DeHaven, thereby discouraging membership in International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local Union
No. 171, A. F. of L., the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (3) and (4) of the Act.
3. By said acts the respondent has interfered with, restrained and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act,
and has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned hereby recommends that the respondent, D. D. Thomas and A. E_
Thomas, doing business under the name and style of Thomas Brothers Whole-
sale Produce, its agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, Local Union No. 171, A. F.
of L., by laying off, discharging or refusing to reinstate any of its employees,
or in any other manner discriminating in regard to their hire and tenure of
employment or any term or condition of employment ;
(b) Discharging or otherwise discriminating against any employee because
he gave testimony in a proceeding of the Board under the Act ;
(c) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, Local Union No. 171, A. F. of L., or any other
labor organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Post at its plant at Roanoke, Virginia, copies of the notice attached hereto
marked "Appendix A." Copies of said notice, to be furnished by the Regional
Director for the Fifth Region, after being signed by the respondent's representa-
tive, shall be posted by the respondent immediately upon the receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reason-
THOMAS BROTHERS WHOLESALE PRODUCE 1009
able steps shall be taken by the respondent to insure that said notices are not
altered, defaced, or covered by any other material ;
(b) Notify the Regional Director for the Fifth Region in writing, within ten
(10) days from the date of the receipt of this Intermediate Report, what steps
the respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
As provided in Section 203.39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
•counsel for the Board may, within fifteen (15) days from the date of service
,of the order transferring the case to the Board, pursuant to Section 203.38 of
said Rules and Regulations, file with the Board, Rochambeau Building, Wash-
=ington 25, D. C., an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report, or to any other part of the rec-
ord or proceeding (including rulings upon all motions or objections) as he relies
upon, together with the original and four copies of a brief in support thereof;
and any party or counsel for the Board may, within the same period, file an
,original and four copies of a brief in support of the Intermediate Report. Im-
mediately upon the filing of such statement of exceptions and/or briefs, the
party or counsel for the Board filing the same shall serve a copy thereof upon
each of the other parties and shall file a copy with the Regional Director. Proof
of service on the other parties of all papers filed with the Board shall be promptly
,made as required by Section 203.65. As further provided in said Section 203.39,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of service of the order transferring the case to the Board.
JOHN H. EADIE,
Trial Examiner.
Dated July 9, 1947.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their rights to self-organization, to foam labor
organizations , to join or assist INTERNATIONAL BROTHERHOOD OF, TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN -& HELPERS OF AMERICA, LOCAL UNION No. 171,
A. F. OF L., or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection.
WE WILL NOT discharge or otherwise discriminate against any employee
because he gave testimony in a proceeding under the National Labor Rela-
tions Act.
1010 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 or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
D. D. THOMAS and A. E. THOMAS,
doing business under the name and style of
THOMAS BROTHERS WHOLESALE PRODUCE,
Employer.
Dated------------------- By---------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.