Thurston Motor Lines, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1966

159 N.L.R.B. 1265 (N.L.R.B. 1966)

THURSTON MOTOR LINES, INC. 1265
WE WILL, upon request, bargain collectively with Local 1459 Retail Clerks
International Association , AFL-CIO, as exclusive bargaining agent of the
employees in the appropriate unit with respect to rates of pay , wages, hours of
employment , or other conditions of employment , and if an understanding is
reached, embody such understanding in a signed agreement . The appropriate
unit is:
All employees employed at our Springfield , Massachusetts , store, exclusive
,of office clerical employees , professional employees , guards, ' and all super-
visors as defined in Section 2 ( 11) of the Act., ,
WE WILL NOT in any like or similar manner interfere with, restrain , or coerce
our employees in the exercise of their right to self-organization , to form , join, or
assist Local 1495 , Retail Clerks International Association , AFL-CIO, or any
other labor organization, to bargain collectively through representatives of their
own choosing and to engage in other concerted activity for the purpose of col-
lective bargaining or other mutual aid or protection , or to refrain from any or
all such activities , except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3), as guaranteed in Section 7
thereof.
All our employees are free to become , remain, or refrain from becoming or
remaining, members of any labor organization.
ED'S FOODLAND OF SPRINGFIELD, INC.,
Employer.
Dated------------------ - By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, Boston
Five Cents Savings Bank Building , 24 School Street, Boston , Massachusetts 02108,
Telephone 223-3 3 53.
Thurston Motor Lines, Inc. and Teamsters , Chauffeurs, Helpers
and Taxicab Drivers Local Union 327, affiliated with Interna-
tional Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America. Cases 26-CA-2078,2,3,4,5,2118,2133,
and 2157. June 24,1966
DECISION AND ORDER
On March 14, 1966, Trial Examiner David S. Davidson issued his
Decision in the above-entitled proceeding, finding that the Respond-,
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached trial Exam-
iner's Decision. Thereafter, Respondent filed exceptions to the
Trial Examiner's Decision, and the Intervenor, Transportation
Employees Association, filed exceptions and a supporting brief. The-
General Counsel filed cross-'exceptions and a supporting brief, and
the Intervenor filed a reply brief to the General Counsel' s cross-
exceptions.
159 NLRB No. 120.
243-084-67-vol. 159-81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 these cases to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, cross-exceptions, and
briefs, and the entire record in the case, and hereby adopts the find-
mgs,' conclusions, and recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
1 We hereby correct certain minor inadvertent errors appearing in the Trial Examiner's
Decision.
TRIAL EXAMINER'S DECISION
STATEMEN r OF THE CASE
Upon charges filed on various dates between April 9 and July 21, 1965, by
Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated
with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, referred to herein as the Teamsters or Local 327, the General
Counsel issued a consolidated complaint on June 11, 1965, which was thereafter
amended and consolidated with charges later filed.
The amended consolidated complaint of July 23, 1965, as further amended at
the hearing, alleges that Respondent violated Section 8(a)(1), (2), (3), (4), and
(5) of the Act. Respondent denies the commission of any unfair labor practices.
A hearing was held before Trial Examiner David S. Davidson in Nashville,
Tennessee, on August 23 through 27, 1965. At the hearing Transportation Employ-
ees Association (Independent), Local 101, hereinafter referred to as TEA, was
permitted to intervene. At the close of the hearing oral argument was waived,
and the parties were given leave to file briefs. Briefs were filed by the General
Counsel and TEA but not by Respondent.'
Upon the entire record in this case and from my observation of the witnesses and
their demeanor while testifying, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent Thurston Motor Lines, Inc., is a North Carolina corporation with
its principal office and place of business at Charlotte, North Carolina, and termi-
nals at Nashville, Tennessee, and various other locations in Tennessee, North
Carolina, South Carolina, and Virginia, where it is engaged in the business of inter-
state transportation of motor freight. During the 12-month period preceding the
issuance of the complaint, a representative period, in the course of its business
Respondent received gross revenues in excess of $1 million for the motor trans-
portation of freight between the States of Tennessee, North Carolina, South Caro-
lina, and Virginia. I find, and Respondent admits, that at all times material herein
Respondent is and has been an employer engaged in commerce within the meaning
of the Act and that assertion of jurisdiction is warranted.
'On November 1, 1965, the General Counsel filed a motion to correct record on which
I have ruled by separate order. Also after the close of the hearing, pursuant to arrange-
ments made at the hearing, the parties substituted a stipulation with 41 pages of attach-
ments identified as General Counsel's Exhibit 27 for General Counsel's Exhibits 27(a)
through (z) which have been withdrawn.
THURSTON MOTOR LINES, INC.
IT. THE LABOR ORGANIZATIONS INVOLVED
1267
Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated
with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America and Transportation Employees Association (Independent),
Local 101 ate labor organizations within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and the issues
At one time, prior to 1963, the local drivers and dock employees at Respondent's
Nashville terminal were represented by TEA. In 1963, an election was held at the
terminal on a petition filed by the Teamsters, resulting in a majority vote for no
union. From then until the time of the events involved herein, the Nashville
employees were unrepresented.
Early in 1965, a Teamster organizational campaign commenced among the
approximately 17 drivers and dock employees at the Nashville terminal. On
March 17, 1965, Local 327 sent Respondent a letter advising it that a majority of the
drivers had requested Local 327 to represent them, and on March 22 Local 327
filed a representation petition in Case 26-RC-2357 seeking an election among
Respondent's Nashville drivers and warehouse employees On April 8, 1965,
drivers Thomas Larkins and Jackie McDole were discharged. On April 9 and 14,
1965, dockmen Thomas Mohon and James Screws were discharged. On April 15,
a hearing was held on the representation petition at which TEA sought to intervene
on the basis,of a showing-of interest among the Nashville employees. Glenn Poss
was the only employee who attended or testified at the hearing. On April 28, 1965,
Poss was discharged. On May 6, 1965, the Regional Director for Region 26 issued
his decision and direction of election in the representation case. The election
directed by the Regional Director was never held and presumably the petition was
withdrawn or dismissed when the complaint herein issued. On June 16 and July 19,
1965, drivers Davis Robertson and Larry Storey were discharged.
The principal contentions of the General Counsel, all denied by Respondent,
are. (1) Both before and after the Teamsters demand for recognition and petition,
Respondent through leadman Mike Walters, whose supervisory status is contested,
and others, who are admitted supervisors, engaged in extensive interrogation,
threats of reprisal, and other acts or interference, restraint, and coercion; (2)
Respondent rendered unlawful aid and assistance to TEA by Walters' solicitation
of TEA'memberships and attendance at a TEA meeting and by deduction of TEA
dues from employees' pay; (3) during the month of April 1965, Respondent first
withheld employment from part-time employee Philip Vaughn and then gave both
Vaughn and another employee, Larry Storey, jobs as full-time drivers to induce
them to forgo Teamsters membership and activity; (4) Respondent discharged the
seven employees named in the preceding paragraph because of their union activities
and membership and not because of various reasons which Respondent advanced
to explain each of the discharges;2 (5) Respondent refused to recognize and bar-
gain with Teamsters not because of a good-faith doubt of the Teamsters' majority,
but for the purpose of gaining time to undermine and destroy its majority.
B. Respondent's Nashville operations and the appropriate unit
for collective bargaining
Respondent's Nashville terminal is one of a number of terminals in its interstate
system. Outbound freight is brought to the Nashville terminal by interlining
carriers and by Respondent's local drivers employed at the Nashville terminal for
over-the-road hauling to other of Respondent's terminals by Respondent's over-
the-road trailers.3 Respondent's over-the-road trailers bring inbound freight from
other terminals to Nashville for distribution by the local drivers to interlining
carriers and consignees in the Nashville area. When not driving, the local drivers
a Poss' discharge is also alleged to have been caused by his participation in the represen-
tation hearing. .
3 There are no over-the-road drivers assigned to the Nashville terminal, and none are
involved in this proceeding.
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work on the dock loading and unloading freight from Respondent's over-the-road
trailers and the pickup trucks and trailers which they drive. At all times material
there were approximately 14 local drivers at the Nashville terminal. Respondent
also employed several dock or warehouse employees whose duties consisted of
receiving, unloading, and 'loading freight. In addition, Respondent employed a
mechanic, at times a mechanic's helper, clerical employees, salesmen, a terminal
manager, an assistant terminal manager, and two leadmen, Mike Walters and
Robert Lilley, whose duties, were largely confined to the terminal.
It was stipulated at the hearing, as stipulated and found in the representation
case, that an appropriate unit for purposes of collective bargaining with Respond-
ent is: All truckdrivers and warehousemen employed at Respondent's Nashville,
Tennessee, terminal, excluding office clerical employees, mechanics, salesmen,
guards, and supervisors as defined in the Act.
The parties agree that the manager, the acting manager who replaced him during
the events here involved, and the assistant manager are supervisors and therefore
excluded from the unit. They disagree as to the status of leadman Mike Walters.
C. The status of -leadmen Walters and Lilley
During the winter and spring of 1965 Walters worked at the terminal from
6 a.m. to about 3.30 p.m. each day, and Lilley worked from 9 p.m. until 6 a.m.4
Both Lilley and Walters were paid at the same hourly rate of pay as the 'drivers
and one of the dock employees. They worked approximately the same number
of hours and received the same fringe benefits as the other terminal employees.
Neither Lilley nor Walters had authority to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other employees. However, each
had duties and responsibilities which were different from the other employees with
whom they worked, and the question to be decided is whether they responsibly
directed other employees. In the representation case the Regional Director found,
after a hearing,5 that both Lilley and Walters "responsibly direct, in a nonroutine
manner, employees under them," and concluded that they were supervisors.
Respondent filed a request for review of the Regional Director's decision in which
it sought review of the finding with respect to Lilley but not with respect to Wal-
ters.6 Respondent's request for review was denied.
The General Counsel contends that Walters was a supervisor as found in the
representation case, but that upon the basis of evidence discovered in the investiga-
tion of the charges, Lilley was not a supervisor, contrary to the representation case
findings. Respondent and TEA contend that neither Lilley nor Walters was a
supervisor.
, Although evidence was introduced without objection relating to the status of both
Walters and Lilley, there is no contention that there was a change in the status of
either after the representation case hearing. Also, there is no contention that the
evidence presented before me with respect to their status was unavailable at the
time of the representation hearing.? In these circumstances, there may well have
been no cause to litigate further their status in this proceeding.8
I find it unnecessary, however, to rely on the Regional Director's findings, for
the evidence adduced before me together with the evidence presented in the repre-
sentation proceeding, which was made part of the record herein, supports the con-
clusion that both Lilley and Walters were supervisors.
* Lilley left Respondent 's employ after most of the material' events in this proceeding
had occurred.
s Respondent , the Teamsters, and TEA were permitted to participate fully in the hear-
ing, although TEA's motion for intervention in the representation proceeding was denied
after the hearing by the Regional Director on the ground that its only showing of in-
terest was the authorization card of Mike Walters who was found by the Regional Direc-
tor to be a supervisor.
6 TEA filed an untimely request for review which was rejected by the Board. In It TEA
sought to challenge the finding that Walters was a supervisor and the denial of its
intervention.
7 Although the General Counsel based his position with respect to Lilley on evidence
uncovered during the investigation of the unfair labor practices , he has not identified
that evidence nor does the evidence presented here with respect to Lilley differ in any
substantial way from that before the Regional Director in the representation case.
8 Rish Equipment Company, 150 NLRB 1185. See Trial Examiner Kessel's Decision,
adopted therein and attached thereto, at 1193-94.
THURSTON MOTOR LINES, INC.- 1269
Lilley arrived at the terminal each evening to start work as Assistant Terminal
Manager Marler was preparing to leave. Their working hours overlapped by from
1 to 2 hours .9 After giving Lilley information and instructions with respect to
incoming freight, the work to be done, rush shipments, and equipment to be uti-
lized, Marler left for the night. Lilley was left with from one to three dock employ-
ees to unload all the incoming freight from over-the-road trucks and reload it on
local trucks for distribution in the Nashville area. Based upon what Marler told
him and his experience and knowledge of the Nashville area, Lilley instructed the
other employees in the performance of their work during the night, working along
side of them and performing as much manual work as the others. Lilley exercised
discretion in determining whether the night shift employees should work overtime.
Lilley's opinion was sought by Howell and Marler as to the merits of night shift
employees. As is set forth below, in connection with Screws' discharge, when
Lilley was dissatisfied with the work of Screws on the night shift, he raised the
matter with Manager Howell and recommended that he be transferred to the day
shift. Screws was transferred to the day shift. There is no indication that any
independent investigation was made of Lilley's evaluation of Screws, and indeed
the fact that Lilley worked alone with the night dock crew made it almost essen-
tial that Lilley's opinions and reports be given great weight in the evaluation of
the night crew.
In the morning Walters arrived at the terminal as Lilley was ready to leave.
Lilley reported to him on the status of the work and the freight at the terminal and
then left with the others in his crew. Walters remained alone at the terminal until
approximately 8 o'clock when most of the local drivers arrived for work. Between
6 and 8 most of Walters' time was occupied with compiling and transmitting by
telephone to Respondent's headquarters at Charlotte a morning report of tonnage
handled and hours worked the previous day. When the drivers arrived, Walters
assigned them to unload freight, if the unloading had not been completed by the
night crew, or to take loads out for delivery. After the drivers left, Walters was
again alone at the terminal for a period of time.
Manager George Howell arrived at the terminal sometime after 8,10 but spent
little time outside his office on the dock. From the time the drivers left to make
their deliveries until 10 a.m., Walters was the only employee on the dock, and he
received any freight brought to the terminal by connecting carriers. The two day-
time dock employees arrived at 10 and 11. After their arrival, under Walters'
direction and with occasional assistance from Walters, they received and loaded
out for over-the-road shipment freight brought to the terminal from connecting
carriers. As noted above, Assistant Terminal Manager Marler arrived at the termi-
nal sometime during the late morning.
Walters handled little freight but was responsible for a considerable amount of
paperwork and took telephone calls from shippers who wanted freight picked up
and from drivers calling in to find out where to go next to pick up freight. None-
theless, during the period in the morning when the drivers reported ,for work, it
was Walters who determined, whether they should leave immediately or remain at
the dock to do dockwork first, assigned equipment and runs to them, and gave them
other instructions which they followed." ,
When the workload required, Walters instructed employees to clock in early to
start work, and Walters also asked employees to work overtime on other occa-
sions.12 Walters corrected errors on timecards, wrote in time when cards were not
punched,' and entered "no lunch" and initialed -cards for employees who worked
0 Although the record is snot entirely clear as to Marler 's starting 'time; payroll records
show that he worked-9 hours a day, and it appears that he came to work between 11' and
12 in the morning. - ' -
10 Howell was' manager until June 1, 1965, when ' he left Respondent's empl6y. On that
date Newt Cathey, who had been a salesman at the terminal, became acting, terminal
manager, a position he still , held at the time of the hearing.
11 Walters instructed drivers and dockmen to wash out refrigerated equipment , `cut grass,
fill Coke machines , and perform other duties around the terminal , as, well as to unload
and deliver freight. "
120n one occasion ; Walters called Vaughn, an employee , ` at home ' and, asked him to
come into the terminal to work ,on Saturday, not his regular workday . During' the time
Vaughn worked that day, Walters , but no ` other supervisor , vas'present at'the terminal.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through their lunch periods.13 Walters gave employees permission to take time
off without consulting with Marler or Howell. Like Lilley, Walters also reported
to Marler and Howell from time to time with respect to the work performance of
employees.
Although Howell was present at the terminal for about three-fourths of Walters'
shift, Howell's testimony makes it clear that Howell's duties at the terminal were
administrative and confined him largely to the office. He had little opportunity or
occasion to observe the work being done on the dock and in the yard.- While
Marler spent more time on the dock and also gave instructions to drivers and dock
employees while at the terminal, Marler's testimony indicates that when Walters
was at the terminal, Marler was predominantly occupied with office duties, and the
running of the dock was left to Walters. Thus, when asked how much of Walters'
time was spent doing manual labor while Marler was present to see it, Marler
replied:
I couldn't give you-I don't know exactly. A lot of times I am in the office
and maybe he is out on the dock, maybe supervising the dock work and I
don't know exactly what he does, I mean as far as unloading and pushing
carts and so forth.
Nor was the direction of the clockwork so routine that it may be written off as
not a responsible duty. As set forth more fully below in connection with the dis-
charge of Screws and Motion, during the winter of 1965, Respondent's headquar-
ters was concerned over loading errors and, damage claims throughout its system.
Terminal managers in communications from headquarters to all terminals were
admonished to take steps to reduce loading errors and claims, and in a headquarters
communication to all terminal managers dated April 2, 1965, they were urged:
Please spend every minute possible out on the dock supervising loading,
handling and counting. The money to satisfy rising cost of equipment and
labor will have to come from somewhere and the first place to look for this
money will have to be claims.
It is evident that Walters performed this important function during the time he
was at the terminal each day.14
I conclude on the basis of all the evidence before me that both Walters and
Lilley had authority responsibly to direct the work of employees with whom they
worked and were supervisors within the meaning of the Act and at all times
material herein. Accordingly, both are properly excluded from the unit found
appropriate.15
D. The organization of the Nashville employees
1. The Teamsters' organizational efforts
Early in 1965 the Nashville terminal employees began to sign authorization cards
for the Teamsters. The cards were captioned "Application for Membership-Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America." They bore blanks for insertion of a local union number and the date,is
13 Howell and Marler testified that Walters always reported to them when he wrote "no
lunch" on a card . It is clear, however, that Walters did not seek authorization from
them but reported to them after the fact, as Howell testified , "because during the course
of figuring the production reports or at the end of the week figuring the payrolls we would
have to figure this out as to why these people did not have lunches " A bulletin was
posted informing the employees that all "no lunch" entries had to be initialed by Howell,
Marler, or their leadman.
is In this connection I do not credit general testimony of Howell and Marler, adduced
at least in part in response to leading questions , to the effect that Walters merely trans-
mitted instructions emanating from them . As both admitted , neither kept close watch
over the dock while Walters was present, they were not present for a significant period
of time that Walters worked, and Walters exercised discretion in making assignments.
is Frederickson Motor Express Corporation, 121 NLRB 32, 34-35; Dixie Ohio Express,
Inc., 123 NLRB 1936.
16 Most of the cards signed by the Nashville terminal employees had no local union num-
ber inserted in the appropriate blank. However, for purposes of the refusal - to-bargain
allegation in the complaint they are sufficient to be considered as designations of the
affiliated Local 327. A ci D Trucking Co., 137 NLRB 915 , 921, and cases cited therein.
THURSTON MOTOR LINES, INC. 1271
and designated "the above Union of the International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America " as "representative for purposes
of collective bargaining" of the signer . By March 17 , 1965 , 11 employees had
signed the application cards.17
On March 17 Frank Reed , secretary treasurer of Local 327 , sent a letter to
George Howell , manager of the Nashville terminal , stating:
This is to advise that a majority of your truckdrivers have requested that
Teamsters Local Union 327 represent them , for the purpose of negotiating
wages and working conditions . We stand ready to submit our proof of repre-
sentation to any impartial third party.
We would like to meet with you in your Company 's office at 10:00 A.M.
Friday, March 19, 1965. If the time and place is not convenient , please con-
tact the writer.
On March 19 Howell received Reed 's letter and called Reed 's office . Reed was not
there , and Howell left word that he could not meet with Reed at the time requested
because of a prior commitment . Insofar as the record shows, Reed did not com-
municate further with Howell thereafter . On March 22 Reed filed the representa-
tion petition in Case 26-RC-2357 describing the unit sought as follows: "Included,
Truck Drivers, All City Pickup & Delivery Truck Drivers , Checkers , Tow Motor
Drivers and Dock employees ; Excluded , Office , clerical , supervisors , guards and all
others as defined in the Act."
. On March 23 , 1965, Howell replied to Reed's letter of March 17 , acknowledging
its receipt on March 19 and advising Reed of his attempt to contact Reed at that
time. His letter concluded "The subject dealt with in your letter is of such nature
that I have referred it to the home office of our Company in Charlotte , North Caro-
lina. I will appreciate it, if you will take up any further matters relating to this
with our home office."
On March 29 Respondent's President Thurston wrote Reed in further reply to the
March 17 letter , stating:
You state that a majority of the drivers at our Nashville terminal `have
requested ' your Union to represent them . On the contrary , the circumstances
coming to our attention indicate that a majority of these employees do not wish
to be represented by your Union.
We would like to say further that it is not clear to us that the `bargaining
unit,' which seems to be suggested in your letter, would be appropriate.
Your letter states that you are ready to submit `proof of representation.' It
is our understanding that the National Labor Relations Board is the -agency
which is set up to handle such matters . We note that since writing us, you
have referred this matter to the Labor Board , and we assume that the Board
will proceed with such steps as may be appropriate.
Between the mailing of Reed 's letter and Thurston's reply, two more employees
signed Teamsters application cards and five signed Teamsters cards thereafter.
In addition , leadman Robert Lilley signed a Teamsters card on May 22, 1965,
and upon Lilley 's solicitation , three employees signed cards on June 2 and 4 , 1965.18
During the week ending March 20 there were 17 employees , including 2 part-time
employees , employed at the terminal . Of the 17 , all but 3 or 4 were drivers.'9
There were no changes in the work force until April 3.
'" One, Thomas Larkins, did not date his card . However, he testified that he signed the
card around March 1, 1965, and that he was present when his brother Kenneth Larkins
signed a card dated March 12, approximately 2 weeks later. I credit Larkins' testimony
as to the time of the signing of his card. In any event, the NLRB date stamp on the
card would establish that at the very latest it was signed prior to the morning of March 22.
19 There were three regular dock -employees. Philip Vaughn and Billy Williams were
sequently destroyed. However, there is no evidence that Lilley participated in the solicita-
tion of other employees to sign cards until June 2, 1965.
12 There were three regular dock employees. Philip Vaughn and Billy Williams were
part-time employees who both drove and performed dockwork. Vaughn predominantly
drove and Williams predominantly performed dockwork. Vaughn and Williams were the
only part-time employees who appeared on the Nashville terminal payroll from January 1
until April 3.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The TEA
A number of signed TEA authorization- cards were received in evidence. How-
ever, the record is far from clear as to when the authorization cards for TEA were
signed by employees and when, if ever, TEA requested recognition by Respondent.
For reasons not disclosed, none of the TEA authorizations were dated by those who
signed them at the time they were signed. Instead, after they were transmitted to
TEA President Davis, he filled in dates which he testified were as near as he could
get to the dates on which they were signed . Davis testified that he started a cam-
paign to obtain authorization cards from the Nashville employees because he had
heard that the Teamsters were there. Initially Davis asked TEA Vice President
Adams to ask Mike Walters to talk to the Nashville employees about TEA and ask
them to sign authorization cards.20 . Subsequently, Davis made a similar request
directly to Walters. The record does not establish when these conversations
occurred. However, the earliest date inserted on any TEA authorization card
appears on the card of Joe Grisham which Davis dated March 15, 1965. The next
earliest date appears on Mike Walters' card which Davis dated March 20, 1965.
Twelve additional cards were signed by the other employees and Lilley. The dates
inserted by Davis on nine of the cards fell 'between April 1 and 14. The remain-
ing three bear dates from April 26 to May 16. Nine of the cards were received in
evidence on the basis of Walters' testimony that he was present at the time the cards
were signed and saw them signed.' Walters however did not testify as to the dates
on which any of these cards were signed or on which he began his organizational
activities on behalf of TEA. As Walters and Davis conceded, Walters solicited the
signatures on most of these cards, and he was present at the signing of others in
addition to the nine he ideritified.21 Indeed, the record indicates that there were at
most two cards, that of Lilley, also a leadman , and that of Richey, in which Wal-
ters had no hand. As to Richey, Davis identified the card but testified that he was
not present at its signing , and the record is silent as to how and when his card was
procured.
With few exceptions the record does establish that any of the TEA cards were
signed on or even near the dates which are marked upon them. Jerry Cripps' card
is dated April 2, 1965, although Respondent's payroll records show that he worked
at the terminal for the first time on April 12, 1965. Although Davis testified that he
had the 11 cards bearing dates prior to April 15 with him when he attended the
representation hearing, he offered only one of them to the Hearing Officer at that
time as proof of his interest and that card was the card of Walters, whose super-
visory status was in dispute. Of those whose cards are dated before the representa-
tion hearing only Williams testified in corroboration of the date on the card. Wil-
liams testified that Walters solicited his signature on a TEA card shortly after he
became a regular employee and that he believed the April 12 date on his card was
correct. He became a regular employee on April 12. Storey testified that he was
asked by Walters to sign a card several, but more than 2 or 3, days after he became
a regular employee, which was on April 13. His card is dated April 14. No other
employees who purportedly signed TEA cards before the hearing testified as to the
time- or circumstances of their signing.
In the light of the consistent irregular practice followed with respect to the dating
of the cards; the failure of the record otherwise to establish the date on which any
of the cards were signed other than Williams'; the failure of Davis to present any
cards other than Walters' to support , his interest in the representation proceeding;
the unexplained dating of Jerry Cripps' card before he began to work at the termi-
nal; and Storey's uncontradicted testimony, I do not accept the dates which appear
on the cards as accurately reflecting the dates on which they were signed, except in
the case of Williams.
It is also unclear-on the record whether and, if so, when, TEA demanded recogni-
tion. Respondent's President Thurston testified that he had an oral demand for rec-
ognition from TEA. According to Thurston, sometime in January or February,
TEA President Davis told Thurston in his Charlotte office that "he represented our
people or some of our people I don't remember exactly how he stated it in the
9o Walters -had been a member of TEA during the time that TEA represented the Nash-
- -ville terminal;
a Apart from the nine cards Walters identified , the uncontradicted testimony of Storey,
Williams, and Vaughn established that Walters also solicited their TEA authorizations.
THURSTON MOTOR LINES, INC. 1273
Nashville terminal" and asked for recognition. Thurston testified that sometime
around the date of the Teamsters demand or shortly thereafter Davis came to him
again and indicated that he had cards signed and' represented them. However, with
respect to the second incident Thurston also testified, in an affirmative reply to a
leading question by counsel for TEA, that the second conversation occurred between
the date of his March 29 letter and the hearing on April 15 22 Davis, who testified,
was not questioned as to whether or when he made a recognition demand of Thurs-
ton nor was he asked to testify with respect to the substance of such demand, if any.
Even if the dates on the TEA cards are accepted at face value, TEA had no inter-
est in the Nashville terminal in January or February when Thurston testified Davis
first spoke to him, and there is no evidence that at that time TEA had even com-
menced its organizational campaign. In these circumstances and in the light of
Thurston's vagueness as to the content of Davis' demand at that time and my find-
ing below as to Thurston's testimony otherwise, I conclude that no claim of majority
representation was' made by TEA at that time. Likewise, in view of Thurston's
readiness to agree that the second TEA, demand was made between March 29 and
April 15, the absence of any substantial TEA interest at Nashville until sometime in
April, even accepting Davis' dates, and the absence of any firm evidence to establish
an earlier date, I conclude that no TEA demand for recognition or majority claim
was made until sometime after Thurston had written to the Teamsters on March 29.
E. The alleged independent violations of Section 8(a) (1)
1. George Howell
A number of the alleged independent violations of Section 8(a) (1) with respect to
which evidence was received involved the conduct of Terminal Manager Howell.
A number of employees testified with respect to incidents of interrogation, threats of
reprisal, and other conduct violative of Section 8(a)(1) which they attributed to
Terminal Manager Howell. Most of the incidents are undenied, and a few are
either directly or indirectly admitted. In a few instances Howell attempted to
explain away the conduct attributed to him but was unconvincing in his efforts.
While Howell denied in general terms that he ever threatened that employees would
be discharged or the terminal shut down if the Union came in, he did not testify as
to his version of the conversations in which such threats were alleged to have
occurred, nor did his general denial squarely meet most of the threats which were
attributed to him. Howell admitted that he had talked with employees about the
Union during the period of the union organizational campaign. His testimony was
sparse in detail and when pressed for detail, Howell frequently pleaded inability to
remember. For these reasons, the additional reasons set forth in connection with
some of the specific incidents below, which are illustrative of Howell's testimonial
deficiencies, as well as my observation of Howell while he testified, I do not credit
Howell's few denials or explanations of the conduct attributed to him, unless other-
wise specifically indicated, and I credit the testimony of the various employees
involved in the incidents described below upon which I base the following findings
with respect to Howell's conduct.
a. In November 1964, Billy Williams was hired by Howell for employment at the
Nashville terminal. Howell interviewed him twice before hiring him. At the sec-
ond interview, Howell asked Williams how he felt about a union and told him he did
not want a union at Thurston Motor Lines. William replied that he had quit a job
paying a lot less than he would be making at Thurston if hired. A week later, Wil-
liams was hired.
b. On two occasions a month or more before the Teamsters made its demand for
recognition, Howell asked employee Jackie McDole if anyone had approached him
from the Teamsters about joining the Union. McDole replied that no one had. On
the second occasion, Howell asked McDole to tell him if anyone talked to McDole
about the Union or asked him to join it. McDole said that he would. '
c. Philip Vaughn started to work for Thurston Motor Lines as a part-time
employee in February 1965. A week or two before he started work, 'he was inter-
22 According to Thurston , at the time ' of the second ' demand Davis indicated he had
cards from a majority of the employees . Thurston could not recall whether Davis offered
to show him cards. The earliest date on which TEA could have supported a claim of
majority based on the dates Davis put on its cards and its contention that Walters and
Lilley were not supervisors was April 14.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
viewed by Howell , who asked Vaughn what he thought about the Union and whether
he knew anything about it. Vaughn said he knew nothing about the Union. How-
ell told him that there was a union in the Company, the TEA, which he would be
glad for Vaughn to join, although it was not compulsory . Howell told Vaughn that
"they didn't want any part of the Teamsters."
d. Early in March , around March 9, Howell called employee Thomas Larkins
into his office . Howell asked him if he had heard anything about the Union. Lar-
kins said that he had not . Howell asked if he was sure , and Larkins replied that he
was. Howell told him that the men were acting rowdy as if something were going
around . After Howell tested Larkins ' certainty once more, he told Larkins,he had
better be sure because Larkins knew how Thurston felt. Howell added that if
the Union got started , "you will be out looking for another job walking the street " 23
e. Early in March , Howell spoke to employee Thomas Greene in the outer office
with no one else present . Howell asked Greene if anyone from the Teamsters
organization had approached him about joining the Union . Greene replied nega-
tively. Howell said "If they do, please let me know."
f. Two weeks later Howell asked Greene into his office. Howell asked Greene
how the other drivers were treating him. Greene volunteered in response that they
never said anything to him about the Teamsters . Howell told him that if they did
get the Teamsters started around the terminal , some of them would be fired, and
that Thurston would close the terminal down before he would let the Union
come in 24
g. Around the time Howell received the Teamsters demand for recognition, he
called employee Bobby Freeman into the dispatch office. No one else was present.
Howell asked Freeman "What's this I hear about the union ?" Freeman replied
that he guessed whatever Howell heard was correct. Howell asked Freeman if he
had signed up. Freeman replied that he had . Howell then asked "who all" was
in it . Freeman ieplied that if Howell asked those who were involved they would
tell him. Howell asked Freeman if he knew who started the Union. Freeman
said he did not. Howell said that he was sorry and left.25
h. A day or two after Respondent was notified of the Teamsters ' claim, Howell
summoned employee Glenn Poss to Howell 's office. Howell asked Poss if he knew
anything about the union activities that were going on. Poss replied in the affirma-
tive, and Howell asked him if he was a part of it. Poss again replied affirmatively,
and Howell asked if there was any way that they could work something out to
satisfy whatever problem was causing the employees to seek union representation.
Poss told Howell that he knew of no way. Howell asked Poss who else was
involved in it. When Poss replied that he did not care to comment about that,
preferring to let each man speak for himself , Howell asked Poss whether he thought
the men would be interested in TEA. Again Poss replied that he could not speak
for the others , but that he was not interested in TEA . Howell then told Poss. "Mr.
Thurston had rather die or close his doors than to sign a contract with the Team-
sters Union."
23 These findings are based on the credited testimony of Kenneth Larkins Howell testi-
fied in this connection that he had talked to Larkins about the Union in general conversa-
tion as to what was going to happen . He was unable to recall what either said to the
other except that he testified "I think that I made the statement that if they had a union
in, that they would probably be out walking the street, because we wouldn 't have anything
further to do." While differing slightly from Larkins' version, certainly absent further
explanation , which was not supplied by Howell , his version of the conversation is equally
coercive and substantially impairs the general denial that he threatened anyone with
discharge or shut down of the terminal if the Union came in.
24 Howell was not questioned about his conversations with Greene but his general denial
appears to have been directed at Greene 's testimony . For reasons already stated, I credit
Greene and discredit Howell's denial.
25These findings are based on the credited testimony of Freeman Howell admitted
asking Freeman "what was going on here." According to Howell, when he arrived at the
office that morning someone told him he had problems , and Howell asked Freeman, who
was closest to the door, what was the matter , whereupon Freeman "blurted out" that he
had joined the Teamsters Union, and Howell asked him "why before I knew what was
happening." In the light of the substantial uncontradicted testimony of other deliberate
interrogation by Howell , in addition to my general impressions as to Howell's credibility
set forth above, I do not credit this explanation.
THURSTON MOTOR LINES, INC. 1275
i. Approximately a week after the Teamsters demand,26 Howell asked McDole
to come into his office and asked him why he was for the Union. McDole replied
that he did not feel that he had any security at Thurston Motor Lines, that they
had fired employees in the past for breaking mirrors and small things like that, and
that he knew of one occasion when they fired a man just because he was for the
Union. Howell told McDole it didn't matter whether or not the employees voted
for a union because Thurston would never operate under a union contract and
could not operate under that high scale Howell attempted to assure McDole he
had a job as long as Howell was terminal manager, but McDole replied that Howell
might not be terminal-manager in a month. • Howell then mentioned the Thurston
profit-sharing plan and told McDole that if he were to reconsider being for the
Union, he would be in a lot better shape to profit by it. McDole did, not express
any change in attitude, and as McDole left Howell's office, Howell commented that
McDole did not want his mind changed.
j. Also around March 19, Howell called employee James Screws into his office.
Howell showed Screws the letter he had received from Reed and asked Screws if
he had anything to do with the letter. Screws replied that he had been at the
meeting. Howell asked him why he had anything to do with it, and Screws replied
that he "just thought that the union was a good thing." Howell asked Screws if
he had been treated badly or anything like that. Screws replied that he had not.
Howell said he wished Screws would just forget about having, anything to do with
'the' Union, and'that, if Screws' would do so, his name would not be mentioned,
becausethere would be names mentioned as having had something to do with the
Union. Screws made no reply, and Howell told him that if he should change his
mind to let Howell know.
k. On the afternoon of the day of the receipt of the Teamsters letter, a Friday,
Howell called employee Charles Jackson into his office and asked him how every-
thing was going and whether he knew "of anything that was going on." Jackson
replied that he did not. A general conversation ensued The following Monday,
shortly after Jackson arrived at work in the morning, Howell again called Jackson
in his office and told him he had heard that 11 cards had been signed, and asked
what Jackson knew about it. Jackson told him he knew nothing 27
1. Sometime after April 21, when Williams became a regular employee, Howell
called Williams into Howell's office Howell asked Williams if anyone had
approached him on the dock about the Union. Williams said that no one had.
Howell told him that if anyone did, it would help for Williams to come tell him.
Howell also asked him how he would vote if it came to a vote
There is further evidence of conduct of Manager Howell to support the allega-
tions of violation of Section 8(a)(1) which is set forth below in connection with
allegations of violation of Section 8(a)(3), to which it also relates. However, the
above evidence alone establishes clear and substantial violations of Section 8(a)( I)
by the terminal manager. Howell told employees variously that they would be out
walking the streets looking for another job if the Union got started; 28 that some of
the employees would be fired if they got the Teamsters started; that Thurston
would close the terminal down before he would let the Union in; 29 that Thurston
would rather die or close his doors than sign a Teamsters contract; 30 that Thurston
would never operate under a union contract and could not operate under that high
a scale; that an employee would be in better shape to profit by Respondent's profit-
sharing plan if he reconsidered being for the Teamsters; 31 and that there would be
names of employees mentioned as having something to do with the Union. Each
25MCDole placed this incident at 2 to 3 weeks before his discharge which occurred on
April S. He also testified that he started wearing a union button a week to 10 days after
the Teamsters demand, and was wearing a button at the time of the conversation.
27 Howell denied that he ever told anyone that he had heard that 11 had signed Team-
sters cards, but did not otherwise deny calling Jackson into his office or questioning him
about the Union. I have considered the fact that Jackson is a stepson of Robertson, one
of the dischargees , and a Teamsters adherent . However, Jackson impressed me generally
as a straight-forward witness who confined his testimony to his best recollection of what
had happened while Howell did not I credit Jackson.
zs Paragraph d., supra.
29 Paragraph f., supra.
31 Paragraph h., supra.
31 Paragraph I. See footnote 96, infra.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of these statements, either explicitly or implicitly, conveyed to employees the threat
that reprisals would ensue if they continued to seek union representation. Each
violated Section 8(a)(1) of the Act 32 Howell's requests to employees that they
report on the union activities of other employees also violated Section 8(a)(1).33
Howell's extensive and systematic interrogation of employees as to their own
membership, activity, and desires 34 and the activities and desires of other employ-
ees 35 was accompanied variously by threats of reprisal, the statement that an
employee (McDole) did not want his mind changed, inquiry as to whether there was
any way the problems that bothered the employees could be worked out, and expres-
sions which could be taken to indicate that the employees' union activities would be
futile. In a number of instances the employees were called into Manager Howell's
office where the interrogation ensued. Respondent's hostility to the Union was made
abundantly clear. No legitimate reason was ever advanced by Howell to the employ-
ees to justify his extensive inquiries. While some of the employees were forthright
in their replies, others were evasive, unresponsive, or untruthful in their replies.
Under these circumstances, I find that the interrogation of employees by Howell
described above was coercive and violated Section 8(a)(1).36
2. Mike Walters
A number of employees testified with respect to allegations of violation of Sec-
tion 8(a) (1) by Leadman Mike Walters, found above to be a supervisor within the
meaning of the Act. Although Walters appeared as a witness, he was not ques-
tioned with respect to any of the incidents to which they testified and their testimony
stands on the record uncontradicted. I credit the testimony of the various employ-
ees involved in these incidents who testified with respect to them. However, most of
these incidents involve violations similar to those found above and are at most cumu-
lative. Accordingly, I find it unnecessary to consider the evidence relating to the
alleged violations of Section 8(a)(1) by Walters except as it would expand upon the
order warranted by the findings with respect to Howell.
On two occasions, on March 18 to Thomas Larkins, and on April 10 to James
Screws, Walters asserted knowledge as to the number of cards signed in behalf of
the Teamsters. The General Counsel contends by this conduct Walters created the
impression that the employees were under surveillance. I find that Walters' claims
of knowledge as to the number of cards for the Teamsters did not violate Section
8(a)(1) of the Act. Walters made no claim of knowledge of the identity of the
signers or any other aspect of the employees' union activities. Moreover, when
Reed mailed the request for bargaining on March 17, a number of the Teamsters
adherents began to wear Teamsters buttons at work, giving Walters some basis to
estimate Teamsters strength. In these circumstances, I find Walters' remarks did not
convey the impression that Respondent had been observing union activities beyond
those which were publicly carried on.
In mid-April, about a week after Larkins was discharged, during a conversation
with Poss, Walters told Poss that he was "going to hire everyone of those good old
country boys from up there in Carthage who will tell me they will vote against the
Teamsters." Poss told Walters not to forget his statement as he might be asked to
repeat it 37 Later in April, Walters told employee Greene that "he would have the
biggest hand in winning the election, that he would flood the place with new men to
do so." In both cases, Walters threatened that he would hire employees based on
anti-Teamsters sympathies to vote against Teamsters and frustrate the desires of
those who favored the Teamsters. This threat violated Section 8(a)(1) of the Act.
32 The threats set forth in paragraphs h and I may be alternatively construed as threats
that even if the employees chose a union to represent them , Respondent would never enter
into an agreement , equally violative of the Act. N.L.R.B. v. Marden Mfg. Co., 217 F.2d
567 (C.A. 5), enfg. as modified 106 NLRB 1335 , cert. denied 348 U.S. 981.
33 Paragraphs b, e, and 1. Thurston Motor Linea , Ino., 149 NLRB 1368.
S4 Paragraphs a; c, g, h , 1, and J.
ss Paragraphs b, d, e, g , h, k, and 1.
85N.L.R.B. v. Zimnom Coal Co., 336 F .2d 516 , 517 (C.A. 6) ; United Mineral & Chemical
Corporation, 155 NLRB 1390; Koch Engineering Company, Inc., 155 NLRB 1272.
37 Walters testified that he did not believe he used the exact words quoted by Poss, add-
ing however "I might have said I 've got a bunch of boys on from up around where I live
and I might have said-I just don't remember the exact words." I credit Poss.
THUURSTON MOTOR LINES, INC. 1277
3. Carl Marler
The only allegations of violation of Section 8(a) (1) by Marler are three instances
of interrogation supported by testimony of Vaughn, Freeman, and Poss. Marler
denied interrogating employees about their union activities. As further findings of
interrogation would be cumulative and as the incidents attributed to Marler are at
most ambiguous, I find it unnecessary to consider further the allegations based upon
Marler's conduct.
4. D. J. Thurston, Jr.
Between April 1 and the end of June, Respondent's President Thurston admittedly
spoke to a number of employees both individually and in groups about the pros and
cons of having a union at the Nashville terminal.
Around June 1, at the time Howell left the Company and Cathey took over as
acting terminal manager, during the course of a lengthy conversation with employee
Jackson, Thurston stated that at the Greensboro terminal the "Union had been voted
in 2 years ago and all they had done up there since was fight among themselves and
that they hadn't had a raise since." In a similar conversation with employee Wil-
liams, Thurston mentioned he had dealings with the Union in Greensboro and it
did not work out for the good of the men.38
I find, as alleged, that the remark by Thurston to Jackson with respect to Greens-
boro constituted an implied threat that if the employees of the Nashville terminal
selected representation by the Teamsters they would not receive raises at least for a
long time thereafter, especially in the context of other threats by Howell to the
employees indicating the futility of selecting the Teamsters to represent them.39
F. The alleged assistance to TEA
As set forth in section D, 2, above, Leadman Mike Walters solicited- or witnessed
the signature of practically all of 'the cards collected by TEA- during the organizing
campaign at the Nashville terminal. Walters' activities in this'regard were testified
to by several employees and were freely admitted by both Walters and Davis, the
president of TEA. Walters' activity in this regard appears to have- been carried on
openly on the dock and around the terminal. In one instance, involving employee
Williams a few days before the hearing in the representation case, Manager Howell'
suggested that Walters take Williams' into the salesroom to talk to him after Walters
had started to talk to him in behalf of TEA. - -
On April 26, TEA held a meeting at a restaurant at which dinner was served and
paid for by TEA. All the employees who had signed TEA authorization cards and
two others, Vaughn and Matthews, who had not signed before that date, were
invited to the meeting by Walters. Walters also attended the meeting. At the meet-
ing Vaughn and Matthews were asked to sign cards and signed them. Walters sat
with TEA President Davis 'and its vice president 'at the head of the table, and Wal-
ters solicited Vaughn's signature. However most of the talking at the meeting was
done by Davis. Walters" comments consisted mainly of occasional indications of '
agreement with what Davis said.
On June 12 and again 'on July 3, ' 1965, -TEA dues in the amount of $3 were
deducted from the paychecks of those who had signed TEA cards and of Roger
Grisham who had not. According to TEA President Davis the dues checkoff was
the result of an erroneous inclusion of a list of Nashville employees names on a list
of employees whose dues were 'to be checked off at the Memphis, Charlotte, and
88Thurston did not deny making these statements but testified that all his remarks were
directed at unionization in general . However, Walters, to whom Thurston also similarly
talked, testified that Thurston's remarks were explicitly directed 'against the Teamsters.
Board records show that the Teamsters were certified as representative of the Greensboro
employees on August 5, 1963. Also at the time of Thurston's talk with Jackson, TEA
was out of the race at Nashville as a result of the Regional Director' s denial of TEA's
motion to intervene in the representation case. I do not credit Thurston and find that
his remarks to Jackson were directed against representation by the Teamsters and were
so understood by Jackson. _
19 I find it unnecessary to consider a further allegation, supported by testimony, of Wil-
liams but denied by Thurston, that Thurston interrogated employees about their union'
activities, as this incident is at most cumulative. '
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Knoxville terminals which TEA represented. The list was submitted to Respondent
and accepted by its payroll department, apparently without question. According to
Davis he did not learn of the error until after the second deduction had occurred.
No checkoff authorizations were submitted to the Company by TEA for the Nash-
ville employees, and there was no contract in effect at the time of the checkoff.
On July 19, 1965, the General Counsel alleged in an amendment to the com-
plaint that the deduction of the TEA dues from its employees' wages violated the
Act. On August 10, 1965, Thurston sent a letter to each of the employees from'
whose wages dues had been deducted, expressing regret that the deduction had been
made in error and explaining that the list submitted by TEA had gone through the
payroll department without being caught or questioned. The final paragraph of the
letter stated:
Since this deduction was the result of error within our Company we will be
happy to refund you any deduction that has been made if you will signify your
wishes in the matter. This letter is being sent to you in duplicate so that you
may return one copy to this Company, on which you may show the amount
'which has been deducted and indicated [sic] your desire that it be refunded to
you, if that is your wish.
Insofar as the record shows only one employee, Storey, following his discharge,
requested a refund of the deducted dues.40
I find that the activities of Walters, whom I have found to be a supervisor, in
soliciting employees to sign TEA cards, in soliciting their attendance at the April 26
TEA dinner meeting, in attending and participating in that meeting as set forth
above, constituted unlawful assistance to TEA in violation of Section 8(a)(2).
Sinko Manufacturing and Tool Company, 149 NLRB 201; Meyers Bros. of Missouri,
Inc., 151 NLRB 889.
Likewise the deduction of TEA dues from employees' wages in the absence of any
agreement between Respondent and TEA constituted a violation of the Act.41
Whether committed by inadvertence or design, the effect upon employees of such
assistance is the same, particularly in view of the other acts of assistance to TEA
and the other unfair labor practices found herein. Respondent's offer of refund
upon request was clearly insufficient to negate or dissipate the effects of the unlawful
deduction.42
The General Counsel also contends that Respondent's conduct which is alleged to
violate Section 8(a)(1), (3), and (4) of the Act also violated Section 8(a)(2)
because^it constituted unlawful, assistance, and support to TEA. As I find elsewhere
herein kespondent engaged in extensive violation of Section'8(a)(1) and '(3).' It is
true that the record indicates that the Teamsters Union was not mentioned by name
in connection with many of the incidents found to violate Section 8(a) (1) and
Respondent at Nashville and elsewhere in the past opposed TEA as well as the
Teamsters.43 However the timing of the incidents; Walters' open pro-TEA activi-
ties, Howell's specification of the Teamsters on a number of instances as the object
of Respondent's concern; Howell's statement to Vaughn that he would be glad if
Vaughn joined TEA; Howell's inquiry of Poss as to whether he thought the employ-
ees would be interested in TEA; and the fact that those found below to have been
discriminated against were Teamsters adherents, persuade me that Respondent's
unfair labor practices at the Nashville terminal in 1965 were directed at Teamsters
activity and not at all union activity generally and equally.44 Accordingly, I find
that the conduct elsewhere found to violate Section 8(a) (1) and (3)' herein also
violated Section 8(a)(2) of the Act. Kiekhaefer Corporation, 127 NLRB 1381,
enfd. as mod. 292 F.2d 130 (C.A. 7); Campco Plastics Company, 142 NLRB 1272.
40 Other than the letter, there is no evidence in the record to explain the action of
Respondent's payroll department in making the deductions.
41 Mstco Undergarment Co., Inc., 106 NLRB 767, 769, enfd 212 F.2d 801 (C A. 3).
47 See Consolidated Edison Co. of New York, Inc v N L.R.B., 305 U.S 197, 320;
N L R.B. v. Mexia Textile Mills, Inc., 339 U.S. 563, 567. In the light of the circumstances
set forth above, the remedy provided herein shall include the reinibur,ement of employees
for any dues unlawfully deducted from their wages, with interest at the rate of 6 percent
per annum. Hampton Merchants Association, et at, 151 NLRB 1307: 8inbo Mannfac-
turing and Tool Company, 154 NLRB 1474.
43 See Thurston Motor Lines, Inc , 149 NLRB 1368.
44 See footnote 38, supra.
THURSTON MOTOR LINES, INC. 1279
G The layoff of Vaughn and the transfers of Vaughn and Storey
1. The facts
The complaint alleges that employee Philip Vaughn was laid off for 2 to 3 days
between March 31 and April 6, 1965, to discourage him from engaging in Team-
sters activity and that Vaughn was thereafter granted additional part-time employ-
ment and made a full-time employee to induce him to forgo Teamsters activity.
The complaint alleges that employee Larry Storey was transferred from a bill clerk's
job to a tull-time driving job for similar reasons.45
a. Philip Vaughn
Vaughn was hired by Howell as a part-time employee in February, 1965, after
Poss, an active Teamsters adherent, had spoken to both Howell and Walters on
Vaughn's behalf. As I have found above, at the time Vaughn was hired, Howell
questioned him as to his views about a union and indicated that he would be glad
if Vaughn joined TEA, but that Respondent did not want any part of the Team-
sters Union
Vaughn started to work part-time during the last week in February. From then
until Tuesday, March 30, Vaughn worked at least 3 or 4 days each week, including
every Saturday. Until March 30, Vaughn rode to work with employees Poss and
James Cripps, who lived in the same town as Vaughn. James Cripps, like Poss,
was an early Teamsters adherent. During that period Vaughn learned when he was
needed for work by telephoning in to the terminal, by requests when at work to
come back the next day, or by messages sent to him with Cripps and Poss.
On March 30, while Vaughn was at work, Howell called Vaughn into his office
to talk to hint about the Union. Howell asked Vaughn if he would cross a picket
line, if necessary, to work. Vaughn replied that if he went for the Company, he
guessed he would have to. Howell asked Vaughn what he would do if it came to
It vote, and Vaughn replied he would probably vote against the Union. Howell
told Vaughn he would give him a week to think about the matter and their con-
versation ended
Following this conversation, Vaughn was not called to work until the end of
the following week. On Tuesday, April 7, Vaughn telephoned Howell and asked
him why he had not been called to work and what the trouble was. After indicat-
ing that Vaughn's work had been satisfactory, Howell asked Vaughn if he remem-
bered what they had talked about the other day. Vaughn replied that he did.
Howell ascertained that Vaughn had money due him and suggested that he come
to the terminal the next day to pick up his money and talk further about his
employment , adding, "That is something you can 't talk about over the telephone."
The next day Vaughn went to Howell's office. Howell repeated the questions he
had asked on March 30, and Vaughn answered much as he had at that time, adding
that he thought he had already explained his feelings to Howell and that he did
not know anything else that would make it any plainer than it was According
to Vaughn, Howell then said, "Philip, I don't know about you" and then after
thinking for a few minutes Howell said , "I am going to give you another opportu-
nity and bring you back in and work you some more ." In the course of this con-
versation, Howell pointed out to Vaughn that he had been riding with Cripps and
Poss and thai they might try to influence him. Vaughn replied that everyone was
entitled to his own opinion. Howell told -Vaughn- not to ride with Cripps or Poss
any mote 46
45 The grant of full -time employment to Vaughn and the transfer of Storey are alleged
as violations of Section 8(a)(1) only.
46 The findings as to the three conversations between Vaughn and Howell are based on
Vaughn's credited testimony. Howell did not deny that any of the conversations occurred
and testified only in fragmentary fashion with respect to them. When asked without
reference to any specific conversation whether lie asked Vaughn how he would vote or
whether he would stick with him , Howell replied , " I don't recall the complete con, oorsa-
tion the day that he came into the office , sir, whether I asked him that or not . I doubt it
that I did." Howell's testimony with respect to his discussion of carpooling with Vaughn
was internally inconsistent , vague , and implausible For these reasons , as well as niy im-
pressions of Howell as a witness set forth above, I do not credit his testimony with respect
to 'Vaughn.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The next day, April 9, Vaughn was again called to work and it appears that he
worked daily thereafter. However, Vaughn did not ride to work again with Poss
or Cripps According to Respondent's records, Vaughn became a regular employee
on April 12 47 Although Vaughn signed a Teamsters card on that day, there is no
evidence that he gave any outward indication of Teamsters support. However, as
set forth above, on April 26 he attended the TEA dinner meeting at Walters'
request and there signed a TEA card in Walters' presence.
Respondent's payroll records show that from January 1 until March 30, 1965,
Vaughn and employee Billy Williams were the only part-time employees used at
the terminal. According to Respondent's payroll, the first time in 1965 that any
other part-time employee was employed was April 3, the Saturday following the
last day Vaughn worked in March. On that day Richey first appeared as a part-
time employee and worked 7 hours on the dock.48 During the next week Richey
and another part-time employee Agee worked on Monday, Tuesday, Wednesday,
Friday, and Saturday, April 5, 6, 7, 9, and 10.49 Williams worked Monday through
Friday that week Vaughn did not work between Tuesday, March 30 and Friday,
April 9. There was no difference between the duties performed by the part-time
employees between March 30 and April 9 and those normally performed by
Vaughn before March 30.50
b. Larry Storey
Larry Storey started to work for Respondent on November 9, 1964 , as a billing
clerk in the Nashville terminal office . Early in 1965 , Storey spoke to both Marler
and Howell about his desire to ' drive a truck . Howell told him at that time that he
did not believe that Storey would be interested and that it would not be good for
him. Howell attempted to persuade Storey that he had a better future in the office.
Storey told him that he was nonetheless interested.
Two or three months later , Howell called Storey to his office and asked him if
he still was interested in driving and working on the dock . Storey replied that he
was, adding that he knew what was going on. Howell replied that it was no big
secret and asked Storey how he felt about it. As the subsequent conversation
makes clear , both Storey and Howell were referring to the Teamsters campaign.
When interrogation failed to product a commital reply from Storey , Howell said
that if that was the way Storey felt about it, he was sorry he had ever said anything
about it. Storey asked Howell to wait because Storey had not had time to think
about it. Howell then asked "If I move you out on the dock, will you be for the
union or the Company." Storey replied that he would like to go out on the dock
for the money and would be for the Company . Howell asked how he could trust
him. Storey replied that Howell would have to trust him.
Storey was made a driver on April 13. During the 4 to 6 weeks before his move,
Howell asked Storey on several other occasions if he could trust Storey if he moved
him to the dock. Each time Storey replied that he could. On one occasion Howell
told Storey that if he moved him out on the dock and Storey signed up with the
Teamsters , Howell could "pretty well find it out" and would fire him 5i
2. Concluding findings
On the facts found above it is clear that between March 30 and April 9 there was
work available to which Respondent failed to call Vaughn and called employees
who had not worked for Respondent previously during 1965. Indeed, the utiliza-
tion of part-time employees during that period of time appears to have been greater
rather than less than usual, and in view of the consistent utilization of Vaughn for
such part-time work since he came on the payroll in February, one would normally
47 Vaughn testified that he became a regular employee around mid-April , possibly a week
after his return to -work. While unimportant , the slight discrepancy between Vaughn's
testimony and Respondent ' s records is perhaps explained by the fact that Vaughn was paid
out of petty cash for the week ending April 17, and payment from , petty cash was the
method used to pay part-time employees.
18 Howell 's testimony, that no part-time employee worked on April 3 is specifically con-
tradicted by the stipulation based on Respondent 's payroll records.
*s There is testimony that one of the two worked part-time for Respondent at an earlier
period of time, evidently before January 1, 1965.
w It appears from the pay records that Williams, who had. previously worked mostly
on the dock , drove during the week Vaughn was off and Richey and Agee worked on the dock.
51 Storey's testimony as to the events leading up to his transfer is uncontradicted and
credited.
THURSTON MOTOR LINES , INC., '1281
expect that he would have been called for it . In view of Vaughn's conversations
with Howell at the time he was hired , his conversations with Howell before, during,
and after the period in question ,- there is no doubt that the failure to call Vaughn,
for which there is otherwise no satisfactory explanation , was motivated by Howell's
suspicions as to Vaughn's union sympathies and intended to discourage those sym-
pathies. When Vaughn was interrogated on March 30, his response failed to reas-
sure Howell and he was explicitly given a week to think about it. As became clear,
the week of thought was not to be interrupted by the conflicting demands of work.
When Vaughn returned to talk to Howell again , after further interrogation How-
ell was sufficiently satisfied to bring Vaughn back to work, but on condition that he
not carpool with Poss and Cripps, a condition for which there is also no satisfac-
tory explanation other than union considerations . Vaughn acquiesced , abided by
the condition, was given work and almost immediately made a regular , employee
when openings occurred because of the discharges of Larkins , McDole, and Mohon.
I find that Howell discriminatorily laid off Vaughn and refused to call him to avail-
able part-time work between March 30 and April 9 in order to discourage sympathy
and support for the Teamsters. I find further that Howell's elevation of Vaughn
to regular employment status a few days after the discriminatory layoff ended,
although in accord with what appears to have been the normal practice of elevating
part-time employees to full-time status when openings arose, was based on " his indi-
cation to Howell 's satisfaction that he would not support the Teamsters and
designed both to induce him to continue his adherence to the views he expressed
to Howell and to interfere with the efforts of the employees to gain representation
by the Teamsters.
The evidence also establishes that Storey 's transfer from the office to driving
was similarly motivated . When Storey first sought transfer , early in 1965 , Howell
sought to discourage him., But when the Teamsters campaign became a matter of
concern, Howell broached the matter of transfer to Storey , at the same time seek-
ing assurances from Storey that he would be for the Company and against the
Teamsters . For several weeks before the transfer occurred Howell several times
asked Storey if he could trust Storey, threatening on one occasion that he would
fire Stoiey it he transferred Storey to the dock and then discovered that Storey
signed up with , Teamsters . There is no evidence to rebut the clear inference that
Howell decided to grant Storey 's request for transfer after a sufficient period of
preparation for the same reason that-he made Vaughn a full-time employee.
I conclude that Vaughn 's layoff violated Section 8 ( a)(3) of the Act and that
the assignment of Vaughn and Storey as full-time drivers violated Section 8(a)(1)
as alleged in the complaint.
I also find that the Howell's interrogation and threats directed at Vaughn and
Storey constitute additional independent violations of Section 8(a)(1), similar to
those found in section E, 1, above. In addition , Howell's statement to Storey
that if Storey-signed up with the Teamsters , Howell could find out, created an
impression of surveillance further violating Section 8 ( a)(1).
H. The discharges
1. The facts
a. Thomas Larkins
Thomas Larkins signed a Teamsters application card around March 1" and , started
to wear a Teamsters button in the latter part of March. Howell clearly knew of
his Teamsters support. Sometime before April 1, Larkins asked Howell about
getting his shift changed . Howell replied that it was possible and then asked
Larkins what was the trouble with the men and why they wanted the Union.
Larkins replied that the men, including Larkins, felt insecure and wanted job
security. Howell told him that their jobs were as secure as if they had the Union.
Larkins continued to express doubt and concern over their security , and Howell
continued to attempt to assure Larkins that his job was secure. Howell' also
mentioned the Company 's profit-sharing plan and pointed out that in a year Larkins
would be eligible to draw from it it he wanted to. Larkins replied that he did not
believe Thurston would let a man stay long enough to draw any of that and that
he had seen men with long service that were fired for little,or no reason at all.
At the conclusion of the conversation Howell told. Larkins to think about it and
let him know how -he, felt : , Howell also at that point agreed to change Larkins'
243-084=67=vol. 1'59-82
i ` '
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shift. There is no evidence that Larkins and Howell talked further about the
Union thereafter.
As the drivers were aware, Respondent employed safety men who occasionally
patrolled in unmarked cars highways over which Respondent's trucks traveled in
connection with Respondent's efforts to enforce speed and safety regulations. Driv-
ers were not notified of such patrols, but to the contrary, Respondent took precau-
tions to conceal the presence of the patrols from drivers in the patrolled area.
On March 23, 1965, the same day that Howell wrote Reed to inform him that the
bargaining request had been referred to Charlotte, Respondent's President Thurston
sent a lengthy letter to Respondent's safety director, Cecil Lamm, marked "Personal
& Confidential." In it Thurston stated that he had heard reports of speeding and of
drivers stopping at undesirable locations on Respondent 's west-end operations. In its
three pages Thurston set forth a descriptive summary of Respondent's problems aris-
ing from these practices and its past efforts to curb them. In the course of the let-
ter, Thurston stated, "You also know that in an effort to help this situation along
we have the governors set on these trucks so that the driver cannot quite reach 60
miles an hour unless he tampers with his governor." In conclusion Thurston urged
Lamm to patrol the western end of Respondent's routes as soon as possible. Lamm
replied in writing on March 25, indicating his intention to assign his eastern division
driver-trainer, Richard Leapley, to the western-end patrol work.
On April 1, Larkins reported for work, and Walters instructed him to take the ped-
dle run to Smithville and Carthage, Tennessee. Walters also instructed him to
exchange the tractor then attached to the loaded trailer for tractor 248 which Larkins
regularly drove. While Larkins was not regularly assigned to peddle runs, he was
assigned to them on occasion.52
On April 1, Leapley was in the Nashville area on a patrol assignment. While
parked at a drive-in to eat lunch, Leapley testified that he saw Larkins' truck headed
west at what appeared to be a fast i ate of speed. Leapley pulled out and followed
the truck 53 According to Leapley, he pulled up to Larkins after a while, got close to
the truck, and followed it for from 10 to 15 miles. Leapley testified that while he
followed the truck, a slow moving vehicle got in front of the truck as it started up a
hill. According to Leapley, while still on the crest of the hill and while the yellow
line indicated a no-passing zone, the truck pulled around the slow moving vehicle
and passed it. On another occasion a Tennessee highway patrol car pulled onto the
highway behind the truck, passed it, and went out of sight. According to Leapley,
on these occasions Larkins slowed down to the legal speed limit, but otherwise dur-
ing most of the time Larkins maintained a speed of 60 miles an hour, fluctuating at
times between 60 and 62 or 63 miles an hour. Leapley testified that he made out a
report on a company form at the time of his observation and turned it in to the
safety director at Respondent's Charlotte offices on his return to Charlotte. Leapley
was not consulted further with respect to the matter.
Leapley's report consisted of a mimeographed form which Leapley completed and
signed. It identified the home terminal and numbers of the trailer and tractor.54 It
identified the place where the truck was observed, the direction in which it was mov-
ing, road surface and width. As completed by Leapley, the report indicated "Speed
60 Legal 50," as well as dry road, medium traffic, clear weather, the distance over
which Leapley observed the tractor-trailer, and the time of observation.
Under a section headed "Violation" four blanks were filled in. These were:
Too fast for conditions__________________________ yes
Following too close_____________________________ yes
Improper passing_______________________________ crossing yellow line
Exceeding legal speed---------------------------- company
At the bottom under "Remarks," the following was written:
This driver was following to [sic] close to other traffic as well as myself.
Highway patrolman came up behind this unit and truck slowed down after
patrolman passed him he went back up in speed to a top speed of 60 miles per
hour.
53 Unlike city deliveries, peddle runs require some sustained highway driving.
53 Leapley testified that he did not know the identity of the driver at the time, but
recorded the numbers of the tractor and trailer from which the driver 's identity was deter-
mined after his report was submitted
u The record does not explain how Leapley ascertained the home terminal of the tractor
and trailer nor how he ascertained the number of the tractor while following it from
the rear.
THURSTON MOTOR LINES, INC. 1283
Larkins was informed of Leapley's report for the first time on April 8. On that
morning Larkins was called into Howell's office. Howell prefaced his remarks with
the comment, "You all have got me in a mess here . I should have stayed in bed
this morning." Howell then informed Larkins that Leapley had reported that he
had observed Larkins over a 17-mile stretch running at 60 miles an hour, passing on
yellow lines, running too fast for the condition of the road, and following too
closely to automobiles. Larkins protested to Howell "George, I don't pass on yellow
lines, and the only time that I would be close to an automobile would be to pass
them, and that I was not running over 50 miles an hour." Howell told Larkins that
he had no choice and would have to let Larkins go. As Larkins left, he told
Howell there were no hard feelings 55
Respondent's rules for drivers established the company speed limit at 50 miles an
hour or less if required by the condition of the road.
A manual furnished terminal managers provided that mandatory discharge would
ensue for several offenses, including "Sustained speeds in Company trucks of 55
miles per hour or over." The evidence establishes further that drivers were per-
mitted to go up to 55 miles an hour temporarily in order to pass other vehicles but
that the limit was otherwise 50 miles an hour and that drivers who drove at sus-
tained speeds of 55 miles an hour or more were subject to immediate discharge 56
According to Leapley, the legal speed limit where he observed Larkins was also 50
miles per hour for trucks.
b. Jackie McDole
McDole was hired by Howell to work at the Nashville terminal as a truckdriver
in January 1964. At that time, McDole volunteered to Howell that he had been
in a union before. Howell replied that this fact would not have anything to do with
his working at Thurston as long as he had nothing to do with it while he was there.
Howell added that McDole would be fired if the Union came up and McDole had
any part in it 57 As set forth in paragraph E, 1, b, above, a month or more before
the Teamsters' request to bargain, Howell questioned McDole as to whether he had
been asked to join the Teamsters and asked McDole to inform him if McDole was
approached.
McDole, who was among the earliest of the signers of Teamsters cards, started
to wear a Teamsters button after the request for recognition. Shortly thereafter, as
set forth in paragraphs E, 1, i, above, Howell called McDole into his office and
questioned him as to why he was for the Union. Howell sought to refute the
reasons stated by McDole and reassure him that his job was secure. When McDole
indicated that he was not persuaded by Howell's assurances, Howell told McDole he
would be in a lot better shape to benefit from Respondent's profit-sharing plan if
ii These findings are based on Larkins' uncontradicted testimony which is credited in
this regard Although Larkins did not claim that he inadvertently sped because of a
defective tachograph and conceded that a defective tachograph would have induced him
to drive more slowly than otherwise , he testified that the tachograph needle on tractor 248
sometimes failed to show the appropriate speed after shifting into high fifth gear, that he
had talked to Howell , Marler, Guynn , and Walters about it, and that he had written it up
six to eight times as defective on forms provided by the Company for that purpose . Marler
testified that he did not recall talking to Larkins about the tachograph„ and Howell , Guynn,
and Walters, all of whom testified, were not asked whether Larkins discussed it with
them. However, the forms on which equipment,,condition, and defects were, reported :for
the 6 months prior to Larkins ' discharge fail to show any complaint about the tachograph
on tractor 248 although other defects were noted They show also that each morning be-
fore leaving the terminal, drivers indicated that the speedometer, for which the tachograph
was a substitute, was in working order. When mechanic Guynn checked the tachograph
after Larkins' discharge , he found nothing wrong with it. In these circumstances, al-
though I have otherwise credited Larkins, I do not credit his testimony that he had
written up the tachograph as defective.
69 There is also testimony that a further refinement , communicated to the drivers in a
letter after Larkins' discharge , required that those who reached 60 miles an hour or more
be dismissed without regard to any other factors. The testimony is not entirely clear as
to the existence of this refinement of the rule before Larkins' discharge , and, as I view
the facts , it is not material herein.
87 These findings are based on the credited testimony of DlcDole and are considered only
as background " to shed light on the true character of matters occurring within the lim-
-stations period." Local Lodge No. 1424, 1AM v. N L.R.B., 362 U.S. 411, 416-417.
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he were to reconsider being for the Union, and also said that Thurston would never
operate under a union contract and could not operate under that high a scale. As
McDole left Howell s office, Howell asserted that McDole did not want his mind
changed.
On. April 8, while making deliveries, McDole passed the Mid-Tennessee Toy
House, which was operated by a Mr. Don Shelton and his wife. McDole occasion-
ally stopped there to make deliveries, although on that day he had nothing to
deliver there. As he passed the warehouse, McDole observed that there were no
lights on and that Mrs. Shelton's car was not there. When he later stopped on his
lunch hour, he called the Shelton home and spoke to Mrs. Shelton. He told her
he had not seen her car at the Sheltons' place of business and asked her whether
anyone was sick. She replied that no one was sick, but that they just were not
working that day. She asked McDole if he was working hard. McDole replied
that he was not, and the conversation ended.
Shortly thereafter, Shelton telephoned the terminal and asked to speak to the
supervisor of the drivers. Howell took the call. Shelton said he wanted to know
why a driver would telephone his wife at home. Shelton told Howell that his wife
had received a call a few minutes earlier from McDole and that Shelton could not
understand why he had called or what he was up to. Shelton then repeated to
Howell the substance of McDole's conversation with his wife. Shelton expressed
anger and threatened to come to the terminal. Howell told Shelton that he did not
know when McDole was due back but that he would handle it for the Company.
Shelton told Howell that he did not want McDole sent to his place of business again.
and that otherwise Shelton would not accept freight or use Thurston again. Howell
ended the conversation by advising Shelton that he would let him know anything
that he could to justify McDole's call or help Shelton. Thereafter Howell sent
Gibson, one of the salesmen at the terminal, to Shelton's house to obtain a letter
setting forth the nature of the complaint. At some point also either before or after-
sending Gibson to Shelton's house, Howell called Walker, Respondent's vice presi-
dent, at Charlotte and talked tohim about the matter. Walker instructed him to
discharge McDole.58
Gibson returned to the terminal with a letter from Shelton containing the follow-
ing message:
Today my wife received a phone call from the route man that delivers freight
to Mid-Tenn. Toy House, Madison, Tenn. This call was made to my home at
or near 2 p.m. The phone call had nothing to do with business since we had
no freight- coming from Thurston on this date.
The following questions:
1. Why aren't you at work? -
2. Are you sick today?
3. Is anyone working at the warehouse?
4. He also said the only car parked at the warehouse was a Studebaker
and I didn't see yours and thought maybe you were sick (She drives.
a Buick).
My, wife answered these questions and then he said he had better let her go.
When 'McDole returned to the terminal that evening Howell' called him into his.
office and told him that a man in East Nashville had lodged a severe complaint
against him that day. McDole asked what it was, and Howell replied that the man
had said that McDole was trying to go with his wife. McDole asked who it was.-
Howell replied that it was Don Shelton who worked at the Mid-Tennessee Toy
58 Thurston testified that , both he and Walker handled the McDole matter with Howell.
According to Thurston, Walker handled the matter first but the instruction to discharge
McDole came from Thurston conditioned upon a determination of the '•accuracy of the in-
formation given him. Thurston testified that he told Howell that if he found'that the
information Howell gave Thurston was true there was no alternative ' but to let McDole
go. Neither Howell nor Walker testified that Thurston had any role in the discharge; and
a detailed statement by Walker setting forth the Company 's position with respect to the
discharge, which was submitted to the General Counsel under cover'of a letter signed by
Thurston during the investigation of the charges , makes-no mention of participation by
Thurston in the discharge . Thurston's testimony cast Thurston in the role which Walker's
statement and the testimony of Walker and Howell place Walker . I do not credit T'hurs--
ton and find that be played no part in the discharge. '
THURSTON MOTOR LINES, INC. 1285
-House. McDole replied that he never tried to go with Shelton's wife.59 Howell
then asked McDole if he had called Shelton's wife, and McDole replied that he had
called her on his lunch hour. Howell asked why McDole called her. McDole told
Howell that when he went by the warehouse, no one was there and there were no
-lights on, and that he thought someone was sick or something and called for that
"reason. McDole further told Howell that Mrs. Shelton answered the telephone.
McDole repeated to Howell his conversation with her, as set forth above. Howell
told McDole that Shelton was very upset. McDole said that if Howell would give
.him 30 minutes to go talk with Shelton, he could straighten it out. Howell told
McDole he could not straighten it out because Shelton was very upset. McDole
said if it had not been for "the Union, Howell would have given him a chance to
work it out.60 McDole was immediately discharged.
Following his discharge McDole talked to Shelton, and on the next day he
returned to the terminal at his regular starting time to ask Howell if he was going
to put him back to work. McDole told Howell that Shelton would call and tell,
_him that everything was straightened out. Howell replied that Shelton had not
-called and that he could not put him back to work. McDole again called Shelton
-and returned to the terminal later in the day to inquire whether Shelton had called.
Howell again replied that he had not. McDole asked Howell if he would put him
back to work if Shelton called. Howell said that he could not do so and that
McDole would have to have a letter from Walker in Charlotte in order to get his
_job back. Subsequently, McDole obtained a letter from Shelton, and about the
middle of the following week he returned to the terminal to offer it to Howell,
-telling him that it was from Shelton. Howell refused to accept it and told McDole
he would have to mail it to Walker in Charlotte. McDole did not mail the letter
to Walker.
c. Thomas Mohon "and James Screws
Thomas Mohon started to work at the Nashville terminal in the summer of 1962
as a part-time dockhand. He became a regular employee in March 1963, and from
then until the time of his discharge he was employed as a dockhand. There is no
-evidence in the record to show that Motion's work record had ever been criticized
or had ever given cause for criticism prior to the time of events here involdgd<.
Indeed Terminal Manager Howell conceded that until that time Mohon was a good
employee. Although dockhands were paid 10 cents an hour less than drivers, in
early February 1965, Mohon was given an increase and thereafter received the
same pay as drivers. His duties remained unchanged.
James Screws started to work for Respondent in August, 1964. Screws had
known Howell for 4 or 5 years. He was a close friend of Howell's brother, and
the two had been union members together. Howell knew of Screws' past union
membership and at the time he hired Screws, Howell warned him to have nothing
to do with the Union or getting one started because if he did, Howell would fire him
as quickly as he hired him.81 Screws worked initially on the night shift. After 6
weeks, Leadman Liffey complained to Howell that Screws was not carrying his load
on the night shift and recommended his transfer to days. Lilley told Howell that
Screws was a slow worker and showed very little initiative. Screws was transferred.
From then until April 9, the day after Larkins and McDole were discharged, Mohon
and Screws worked on the dock during the daytime.
Mohon and Screws were among the early signers of Teamsters membership
applications. Mohon signed on January 22, and Screws on January 25. Both
started to wear union buttons at work during March, 1965. As set forth above
'*These findings are based upon McDole 's uncontradicted testimony . Although Howell
testified as to the discharge , he was questioned as to only one aspect of this conversation
between him and McDole , discussed below.
61 On direct examination McDole testified that Howell first said that he' had given the
employees too many chances now and they had rammed the Union down his throat, fol-
lowing which McDole said if it had not been for the Union , Howell would have given
him a chance to work it out. On cross-examination , however, McDole conceded that he
was the first to raise the Union by his assertion that it was because of the Union that
Howell would not give him a chance and added further only that Howell did not give
him a chance. Howell denied saying that the employees had rammed the Union down his
throat. As McDole 's testimony in this regard is left unclear by his response on cross-
examination , I credit Howell 's denial.
61 This testimony of Screws was undenled by Howell and is credited.'
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in section E, 1, j, around March 19 after Howell had received the Teamsters
demand for recognition, be called Screws into his office and questioned Screws
about his union activities and sympathies, telling Screws in the course thereof
that he wished that Screws would forget about having anything to do with the
Union. As Screws testified, Howell added, "If I did that my name wouldn't be
mentioned because there would be names that would be mentioned as having any-
thing to do with the Union." Screws said nothing in reply, and Howell told him
that if he changed his mind, he should tell him.
The duties of Mohon and Screws consisted of receiving freight from interline
carriers and from Respondent's city trucks and loading outbound freight on over-
the-road trailers. On receiving freight they initialed and marked incoming bills to
indicate the number of pieces received and where the freight was stored. In load-
ing freight out for out-bound shipment they marked the trailer number on the bill,
the number of pieces in the shipment, and again initialed the bills. They were the
only employees with full-time assignment to these duties and performed, accord-
ing to Howell's estimate, 75 to 80 percent of the outbound loading at the termi-
nal. The remainder of the loading was done by drivers at the end of the day as
they returned from their local delivery and pickup runs and to some extent by the
night crew.62
In Respondent's business , shipments occasionally arrive at their destinations with
more freight than called for on the accompanying bill, less freight than called for
on the bill, or with damaged freight. These are referred to respectively as over-
ages, shortages, and damages 63 Shortages and damages give rise to direct mone-
tary claims against Respondent, and all three give rise to administrative costs.64 A
certain volume of overages, shortages, and damages is to be expected, and is budg-
eted. During 1964 and 1965, each terminal was allocated a budgetary amount of
11/2 percent of its revenue for payment of claims with respect to freight shipped
from that terminal.65 During 1964 total claims payments for the system ran at
about 21/2 to 3 percent of revenue, and 1964 was described by Respondent's Presi-
dent Thurston as the worst year in claims since World War II.
Each month a summary of claims is compiled and circulated to the terminals in
the form of a claim report which shows for each terminal the numbers of claims
charged, the amount of claims charged, the percentage of tonnage handled by the
terminal, and the terminal budget for the month. The number of claims and
amounts charged are allocated to shortage, damage, and concealed damage. In
addition, the monthly report shows total amounts for the year to date of claims
charged and the terminal budget. By correlating a claim to the bill on which it
was based, it would be possible to determine who initialed the bill and checked
the shipment at its point of origin for each claim.
In addition to monthly claim reports, the employees at terminals who receive
and unload shipments fill out trailer unloading reports for each inbound trailer.
These reports note the unloader's opinion of how the truck was loaded and list the
pertinent information for each shipment unloaded which is over or short. The
report contains a blank for listing the initials of the responsible checker and loader
which appear on the accompanying bill.66
From these trailer-unloading reports, Respondent compiles weekly reports of out-
bound loading errors which are circulated to the terminal managers. These reports
92 On the basis of Mohon's testimony and his affidavit placed in evidence after his cross-
examination , I am satisfied that Mohon testified truthfully that drivers also checked out-
bound freight until a few weeks before Mohon's discharge when he suggested to Howell
that he be permitted to oversee the drivers' loading. There was no testimony to the
contrary.
e3 Occasionally freight arrives without an accompanying bill or a bill arrives without
accompanying freight. The former is considered an overage and the latter a shortage
e* In the event the missing freight is located and delivered there is no claim, but admin-
istrative costs are incurred
95 Administrative costs are not included in this amount, and apparently no effort is
made to allocate administrative costs to the various terminals It appears from Respond-
ent's monthly claims analysis in evidence that there are damage claims which are not
attributed to any terminal and which are charged to the system generally.
w One such report for a trailer originating in Nashville which was unloaded on Febru-
ary 11 was placed in evidence . This report indicates that the trailer contained three ship-
ments that were short and one that was accompanied by no bill. It also indicates that
there were no initials on the bills for the short shipments , and of course there were no
initials indicated for the missing bill.
THURSTON MOTOR LINES, INC. 1287
show for each terminal for the week covered the number of overages, the number
of partial shortages, the number of shipments with no freight, the total number of
errors, the total number of shipments loaded by the terminal, and the number of
shipments per error as an index of the accuracy of the loading at the terminal.
Also shown on the report is the number of shipments per error at the terminal for
the previous week. No effort is ordinarily made to correlate the loading errors to
individual checkers and loaders. These weekly reports of loading errors of course
not only reflect the accuracy of the loading at the terminal of origin but the accu-
racy of the reports of the unloaders at the terminal where the trailer, unloading
reports are completed.
The claim record of the Nashville terminal during 1964 was relatively good.
The total claims allocated to the Nashville terminal fell below its budgeted amount.
However, 13 of Respondent's 22 terminals exceeded their claims budgets in 1964.
The record does not disclose the loading error record at the Nashville terminal
during 1964 except for the last 2 weeks of the year.67
At the close of 1964, Respondent began a claim prevention campaign directed
at all its terminals, and periodic letters and memoranda were sent to all terminal
managers urging increased efforts to improve freight handling and bill handling
procedures and the exercise of closer supervision over the handling and loading
of freight to reduce loading errors and claims.
In a letter from Sutton of Respondent's Charlotte central operations to all ter-
minal managers , dated December 22, 1964, they were asked to "Study the situation
and drop me a note by January 10th outlining what you are going to do, effective
immediately and throughout 1965, to eliminate overages, shortages and freight
without bills; and how you are going to protect the freight to eliminate damages."
On January 4, 1965, Howell wrote Vice President Walker with reference to con-
versations and correspondence with Respondent's claims agent, Thomas, and Sut-
ton, regarding "the claim picture i.e., proper loading, checking. etc. These
subjects being the direct cause of a very poor claim problem here at Nashville "
Howell wrote Walker, "I am in agreement with Mr. Thomas and Mr. Sutton that we
should tighten our reign on the negligence displayed by some of our people at
Nashville. This we are attempting to do and have attempted in the past, by meet-
ing with our warehouse people, reprimands, talks, and on the job training. I can
assure you that we will better the Claim picture in Nashville for the year 1965, and
tighter control will be used in stopping this drain on company monies." 68
On January 7, Howell wrote Sutton in response to his December 30 letter as
follows:
Nashville has started a consentrated drive through terminal meetings and
group meetings, in order to explain this situation to our personnel and also
train them. We have advised these people that this problem must be elimi-
nated and that carelessness on their part will result in disciplinary action. I
have further advised them, that we would not hesitate to use written repri-
mands to control this carelessness.
On January 22, 1965, Howell posted the following notice on the bulletin board
at the terminal:
Nashville, Tennessee
January 22, 1965 gh/sb
SUBJECT: Loading Errors
DRIVERS & WAREHOUSEMEN:
I have talked with many of you, regarding the checking and loading of
freight. It seems that many of you, have failed to take notice, that claims,
are the direct results of misloading and checking.
Please be advised that disciplinary action, will be taken in the future to
curb, these errors, and that if you are involved, you will have no one to
blame, but yourself, as notice has been given.
GEORGE HOWELL,
Terminal Manager.
87 The report for the week ending January 1, 1965, shows 254 shipments per error for
that week, a relatively high or good figure, and 36 shipments per error for the previous
week, a relatively low or poor figure However, perhaps reflecting seasonal shifts in work-
ing loads or other variables, most terminals did relatively well for the week ending
January 1, and most did relatively poorly for the previous week.
68I have reproduced this and portions of other letters below without correction of
obvious errors . Little purpose would be served by calling attention to each of them where
it occurs.
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 16, Sutton again wrote to Howell. 69 In this letter, Sutton called
attention to the weekly loading report for week ending February 5, during which
18 total errors were charged to the Nashville terminal. Sutton indicated as sources
of difficulty shortcuts taken by some of the terminals bypassing proper checking
procedures, lack of interest in the rate and billing departments; and the lack of
coordination between the billing departments and the manifest clerks to insure that
all bills are properly manifested on the right trailer. -
On February 24, 1965, Sutton wrote all terminal managers about claims. After
setting forth the fact that January claims for the system as a whole exceeded the
budget by almost 50 percent, Sutton pointed out that shortages, which accounted
for half the total claims, were basically attributable to improper checking of ship-
ments, that damages, which accounted for the remaining claims, could be caused
by improper checking or acceptance of traffic unfit for transportation, but were
generally caused by improper handling and storing in the pickup units, line units,
or in the warehouse. Sutton concluded:
A careful analysis of this claim picture for the month of January indicates
that there is an immediate need for better education of all our freight handling
people. We will expect terminal meetings to be held immediately with all
freight handling people. Go over this report and take positive action on our
claim reduction program.
On March 12, Howell wrote to Walker as follows:
Please refer to Mr. C. M. Thomas's letter of March 1, 1965 and Claim
Bulletin for the month ending February 1965. As you advised, the extremely
bad showing of Nashville in the Claim effort, has me upset also. Although
our record for the year 1964 was very poor, the claim budget for January
and February this year, has almost doubled the Claim Budget allottement for
Nashville. I am also alarmed at the progress, we are making to solve the
problem, with our personnel.
I am sure you are aware of the labor problems, we have encountered in the
last weeks, for this reason, I am very hesitant in making changes of person-
nel at this time, however I see no other way of reducing our claim ratio at
Nashville, without the removal of some of the negligence.
I have attempted to take some warehousemen from other shifts, with hopes
that this would alleviate the problem, however the men do not won't to make
shift changes and you can not end a problem with disinterest to start with.
Loading reports, waybills, Unlading reports, and check back on claims,
reveal that checking and loading of interline traffic is the apparent cause.
I recommend that the dismissal of two Nashville Warehousemen, Thomas
Mohan and James B. Screws, these men according to our records are involved
in over 80% of the checking and loading and quite frankly, there personnel
records indicate that disciplinary action, should have been taken before now,
these men have recieved both verbal and written reprimands for their negli-
ence as well as I have personnally handled with them on the platform, show-
ing them improper loads, etc. As stated, they are day shift men, involved
in checking, loading nearly all the interline traffic as well as city pickup units
at night or early evening.
I have discussed this with Mr. Carl Marler, Assistant Terminal Manager in
hopes he might have a more suitable solution and he advised, that the atti-
tude of these men is very bad in that they are not receptive to improvement
and then go back to unsatisfactory work.
As stated, I am definetely against personnel changes at this time, if at all
possible, however since, we do have several excellent part time men and appli-
cations readily - avaiable, I believe we should take advantage of them. Mr.
Mohon and Mr. Screws are not qualified drivers, either P & D or
Tractor-Trailer drivers, and have made no effort to learn and they can qualify
Although individualized , identical letters were sent to all terminal managers.
THURSTON MOTOR LINES, INC. ,1289'
for nothing else, it looks as efforts for self improvement by these men are
taken very lightly.
I would like to have your advice on this matter of changes. I trust your
reply will be forth coming.
There is no evidence that any reply, written or oral, was received by Howell.
On March 23, Sutton sent a further communication to all terminal managers
concerning proper loading and its relationship to all the claims picture. In it
Sutton listed 14 items relating to proper loading for the managers to take up with
their people and stressed that it was important for the managers to devote more
of their personal attention to the loading of vehicles.
On April 2, Thomas, the claims agent, wrote all terminal managers and sales
personnel with reference to the ever-rising number of claims resulting from dam-
ages. The letter pointed out that 17 terminals had exceeded their budget and that
as a result the claims ratio was at 2.56 percent of revenue rather than the budgeted,
1.5 percent. After comparing Respondent's claim position with those of other
trucking lines, the letter concluded by urging the managers to spend all available
time on the docks supervising loading, handling, and counting.
During the period covered by this correspondence, Howell talked to Screws and-
Mohon about outbound loading errors on three or four occassions either in his
office or on the dock, and either gave outbound reports to Mohon or asked Marler to,
do so.70 Two or three weeks before Motion's discharge, between March 19 and
26, Howell talked to Mohon and Screws separately about loading errors. He told
them that loading errors were the ultimate cause of claims, that they were greatly
out of proportion for the terminal, and that the responsibiliy was with them,
because they loaded 75 to 80 percent of the freight. He also told them that
records indicated that the errors were caused by them and that they would have
to straighten up or something would have to be done. Howell indicated that he
would talk to them about it further in 2 weeks 71 Both Mahon and Screws pro-
tested Howell's assertion that they were responsible, and Mohon suggested that the
drivers be stopped from loading freight at night or that he and Screws be permitted
to oversee the drivers' loading 72 Howell told them that they were responsible
and should be able to work the procedure out. There is no evidence that Howell
told either of the employees that he had recommended their discharge to Walker
a week or two before. After Mohon's conversation with Howell, around April 1,
Walters asked Mohon while he was loading a trailer on the dock if they were
still going through with the Union. When Mohon said yes, Walters said that he
hated to see Mohon, get messed up in it, that he had been through it three times
before, and that Thurston would never agree to a contract. He added that the-
Union would have to go out on strike and that whenever Mohon got hungry Wal-
ters would ask him up for supper.73
On April 9, Mohon was called into Howell's office. Howell said that it looked
like Mohon had done it again, that they were still having the same old problems, too•
many loading errors, shortages, and claims, and that it was costing the Company
10 While I credit Howell that he spoke to Mohon and Screws about loading errors three
or four times after December, as would appear consistent with the system -wide campaign
to eliminate errors, I note that Howell , whose testimony was frequently sketchy, made no
claim that,he reprimanded Mohon or Screws or charged them with personal responsibility
for claims or errors from December 1964 , until 2 or 3 weeks before Motion 's discharge. On
one occasion , as Mohon and Marler testified , Marler showed Motion an .unloading report
and discussed the errors on it with him. Marler also testified that he had discussed the
nature of the work with Mohon and Screws several times and that "they've been showed
the loading report." I credit Mohon that Marler showed him only one, report. ,
n The versions of Howell , Mohon , and Screws of these conversations are not in essential
dispute ' and my findings are based on a synthesis of their testimony in this regard.
72 According to Mohon, Howell agreed to let them try overseeing the drivers ' loading.
According to Howell , Motion's suggestion that drivers be stopped from loading put the
problem back on him , but he did not deny that he permitted Mohon to 'start overseeing the
drivers' loading.
Is Mohon 's testimony in this regard is uncontradicted and is credited.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
too much. Howell told Mohon that at the rate they were going, Screws and Mohon
would be the highest paid men in the- freight business, in reference to the claims
allocated to the Nashville terminal in January and February 1965. Mohon replied
that he thought that they had improved since Howell had talked to them. Howell
said that they had improved some but not enough, that it seemed like Motion was
the cause of the loading errors, and that he was going to be dismissed.74 During
the conversation Howell showed Mohon about five freight bills that he had in his
hand, three of'which had Mohon's-initials on them. ' One was a bill for which no
'height was received, one was a bill for which the freight had been short, and one
showed that freight had been damaged.
On the same day Screws was called into Howell's office and told that there were
still too many claims and loading errors and that Howell was going to have to do
something about it. Screws asked if they had not improved since the last conver-
sation and whether they had more loading claims. Howell replied that he did not
know for sure because he had not yet received any reports, but that they were
still having too many, and he was going to have to do something.75 Howell told
Screws that whether he liked it or not, he would have to go back on the night shift.
Howell told Screws he did not want any trouble or conflict on the night shift and
that if he did not work out, there would not be anything else Howell could do.
Screws pointed out that the last time he was on nights Lilley had said it did not
seem to him that Screws was trying, but that he would work on the night shift if
that was what Howell wanted. Howell told Screws to report for work at 9 p.m
on April 11.
On April 10, Howell again wrote Walker:
This has reference to various correspondence and my latest letter of
March 12, 1965, regarding the claim problem at Nashville, with further ref-
erence to our telephone conversation of April 8, 1965.76
As previously advised in my correspondence and conversations with you,
it was felt that in order to strengthen Nashville's very poor claim problem it
would be necessary to make personnel changes although it was with much
hesitation that I do so.
Since March 12, 1965, I have personally made a concerted effort to handle
the matter without changes, but my efforts were ineffective. There was with a
constant surveillance of trailers, the supervisors all but loading and checking
freight, an improvement. However, as soon as normal procedure is followed
these personnel go back to a very, poor job. As example, improvement was
shown for one .week after working with the men, but one week later we had
14 wet, damaged, or short shipments on one trailer alone.
I am of the opinion that every effort was utilized to alleviate the situation
without changes The following changes were made effective Friday, April 9,
1965.
I dismissed Mr. Thomas Mohan on April 9, 1965 after one last conversa-
tion. His attitude was very bad and he was not at all receptive to my
conversation
I moved Mr James Screws from the day warehouse shift to the night shift
with hopes of salvaging this man's future. I had a very long conversation
74 Howell did not ' testify ' as to his conversation with Mohon at the time of Mohon's dis-
charge. According to Howell , the loading error situation improved right after his con-
versations with Mohon and Screws 2 weeks earlier but then reverted
75 Howell did not deny making this remark , and there is no evidence otherwise to estab-
lish when the March claim reports or the weekly loading error reports were received by
Howell.
76 Neither Howell nor Walker testified with respect to a conversation on this date other
than that concerning McDole. April 8, the day before Mohon's discharge, was the day
that Larkins and McDole were discharged and Vaughn was'told by Howell that he would
be given more work.
THIJRSTON MOTOR LINES, INC. 1291
with Mr. Screws and I am not at all satisfied with his attitude, however, I
believe another chance should be given this man to make improvement.
I trust you are in agreement with these changes.
Screws worked 3 nights on the night shift and on the third night was told to see
Howell the next day. When he did, Howell told him that the night shift had not
worked out, and he was going to have to do something else. Screws asked why
it had not worked out. Howell told him that majority of the men did not want
to work with him and did not like him, but declined to tell Screws who did not like
him when Screws asked.77 Howell then asked Screws if he had ever checked out
as a driver. Screws replied that he had not Howell asked Screws the reason,
and Screws replied that he had been busy on the dock and had never gotten around
to being checked out as a driver. Howell told Screws that if he knew how to
drive, there would be a way out, but since he did not, there was nothing else to
do. Screws asked if that meant that he was out of a job, and Howell said it did.
Howell then said that he did not want to let this have anything to do with their
being friends, and Screws told him that it did not. Screws then left.
During the period from January 1 until the discharge of Mohon and the transfer
of Screws, the unloading reports show the following with respect to Nashville.
Week ending Overages
Partial
shortages No freight
Total
errors
Number
shipments
Number
shipments
per error
Jan 8--------------------- 7 9 1 17 571 34
Jan 15-------------------- 5 2 3 10 668 67
Jan. 22-------------------- 4 7 0 11 730 66
Jan. 29-------------------- 2 3 1 6 652 108
Feb 5-------------------- 5 6 7 18 696 39
Feb 12------------------- 4 10 1 15 789 53
Feb 19------------------- 2 5 2 9 741 82
Feb 26------------------- 2 7 10 19 694 37
Mai 5---------------------- 4 0 1 5 750 150
Mar 12------------------- 8 8 2 18 789 44
.liar 19------------------- 9 7 6 22 752 34
Mar 26------------------- 6 2 3 11 672 61
Apr 2-------------------- 3 3 0 6 665 109
Apr 9-------------------- 3 4 3 10 714 71
During the next 4 months the volume of freight remained about the same as
before, and the record of the terminal after Mohon and Screws were replaced
showed a variation in the number of shipments per error from a high of 34 to a
low of 11, with an average of approximately 20 each week.
The weekly reports of outbound loading errors show also that relative to other
terminals of the same size, the number of shipments per error at the Nashville
terminal during 1965 until the discharge of Mohon and Screws was slightly better
than average, and in the 3 weeks ending with the discharge of Mohon the Nash-
ville terminal ranked near the top with respect to number of shipments per error
among terminals handling approximately the same number of shipments per week.
14 Howell did not testify as to his conversation with Screws at the time of his discharge.
However, he testified that after Screws returned to the night shift Lilley told Howell that
Screws "couldn't do it" from which Howell presumed Lilley meant the work and Howell
decided to discharge Screws. According to Lilley, who wanted to leave the night shift,
Howell told him that he was transferring Screws to the night shift with a view to making-
him leadman in Lilley's place, and when Howell asked him how Screws was doing, his
answer was that Screws was not capable of taking over his job. I do not credit Lilley in
this regard.
'T' I
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to damage claims, however, the record of the Nashville -terminal'
in 1965 during the employment of Mohon and Screws was poor. The monthly
claims reports show the following for Nashville during 1965.78
Month
No. claims
charged
Amount claims
charged
Terminal
budget
January:
Shortage -------------------------------------------- 13 $307.12
Damage-------------------------------------------- 17 592.03
Cone. damage -------------------------------------- 7 216.33
Total 37 1,115.48 $647 90-
February-
Shortage ----------- I -------------------------------- 18 1,262.70
Damage -------------------------------------------- 8 358.83
Cone. dainage -------------------------------------- 4 162.59
Total 30 1,783.62 618. 52'
March:
Shortage -------------------------------------------- 10 270.12
Damage-------------------------------------------- 9 471.91
Cone. damage-------------------------------------- 4 78.77
Total--------------------------------------------- 23 820 80 703.98
April:
Shortage -------------------------------------------- 7 585.31
Damage-------------------------------------------- 12 171.16
Cone. damage -------------------------------------- 9 112.65
Total--------------------------------------------- 28 869.12 694.98
May'
Shortage-------------------------------------------- 5 417.52
Damage--------- ----------------------------------- 7 84.61
Cone. damage---------- ---------------------------- 3 39.01
Total--------------------------------------------- 15 541.14 700.53
The performance of Respondent's other terminals fluctuated substantially. By
the end of February, the worst 2 months at Nashville, the claim's allocated to all
terminals totaled $48,518.15 against a budget of $27,108.43, and 16 of the 22
terminals had exceeded their budgets. Approximately nine terminals exceeded
their budgets in proportions comparable to and in some cases greater than the
excess at Nashville.
d. Glenn Poss
Glenn Poss' started to work for the Company in March 1963 as a part-time
employee. In June 1963, he became a full-time city delivery driver. Poss was
an early Teamsters adherent and actively engaged in the solicitation of Teamsters
application cards. His activities on behalf of the Teamsters were open, and Howell
was aware of them even 'before the Teamsters request for bargaining. Around the
time of the request Poss began to wear a union button at work. As found above,
in section E, 1, h, at that time Howell interrogated Poss as to his knowledge of and
participation in the union activities Shortly thereafter, Walters also interrogated
Poss about his union activities and told Poss he was going to have to fight him all
the way. Poss 'was the only employee who attended the' April 15 representation
hearing, and he testified in that proceeding as a witness for the Teamsters.
Immediately after Larkins' discharge, when Poss and another driver, Davis
Robertson, were assigned to tractor 248, they began to write up the tachograph in
's The record contains no reports after May.
THURSTON MOTOR LINES, INC.' 1293
the tractor as defective and to complain about it. As a result,' one morning
mechanic Guynn rode with Robertson to check the operation of the tachograph.
Guynn observed that, it seemed to be marking the tachograph disc "funny" and
so informed Robertson. The same morning while Guynn was checking the
tachograph, Poss approached him. Poss asked Guynn if there was anything wrong
with the tachograph. Guynn, who was still in the process of checking it, told Poss
that there appeared to be. Somewhat later after Guynn had finished checking the
tachograph, Poss spoke to Guynn again, and Guynn told Poss'that it seemed to be
all right. Poss. replied that there was going to be a' protest 'iiiade about the
tachograph. Thereafter Guynn checked the tachograph thoroughly and found no
fault with it. He installed a different tachograph in tractor 248, but the complaints
-continued until after Poss was discharged on April 28.
Sometime after Poss' conversation with Guynn, Howell received a call from the
Interstate Commerce Commission informing him that two complaints had been
made against Respondent, one for allowing an underaged or unqualified driver on
the streets, and the other for tampering with a tachograph to show incorrect speed 79
Howell contacted Respondent's Charlotte headquarters and informed Thurston
,of the complaint. Thurston urged Howell to go to the local ICC office and to
offer the assistance of the Company in try' ing to clear the matter up. Thereafter,
Howell went to the ICC office and spoke to Gatling, its safety director. During
the conversation Gatling asked Howell if a man had been fired recently. Howell
told him that Larkins had been fired, and Gatling commented that the complaint
had not been filed by Larkins. Howell asked who had filed the complaint, and
Gatling replied that it was against ICC policy to discuss the identity of com-
planiants. According to Howell, however, during his conversation with Gatling
he sat next to Gatling's desk.and was able to see a portion of a paper which-Gat-
ling was holding in his hand sideways. Howell testified that he saw Poss' name
on it, adding, "I would not state or swear to it without looking at it again, with-
out holding it in my hands but I figured, felt that it was Glenn Poss' name, because
it was fairly visible to me at the time." Howell could not read the title or' heading
on the paper and saw no printed headings on it. He, descnbed it as a white. piece
of unlined typing paper which looked to him like some sort of a form. According
to Howell, Poss' name was on the left side of the paper almost at the bottom.
One or two words or a sentence preceded the name "which I was convinced that.
I thought it was Glenn Poss' name."
Following his visit to the ICC office, Howell called Thurston again and reported
his conversation with Gatling. Howell told Thurston that he was satisfied- in his
own mind that he had seen Poss' name on a report as the complainant, but could
not see it all because part of Gatling's hand was over 'the report. "Thurston asked
Howell what other evidence he had-to establish Poss' responsibility. Howell told
Thurston that he.had learned Poss had gone to the mechanic, Guynn, talked to.
him about the tachagraph, made accusations of tampering to him, and threatened'
that it would be reported. According to Thurston he asked specifically if Poss'
name could have been on the report as that of a witness. Howell replied that he
did not think so. Thurston told Howell that it was his feeling that Poss' action
"was vicious and malicious against the Company and that he should be
discharged." 80
On April 28, 1965, Poss was called into Howell's office. Howell told 'Pons' he
understood Poss had filed charges against the Company: Poss asked what he meant
and told Howell he did not understand. Howell told him that someone had reported
the Company to the ICC and that he had "access to believe" that Poss was the one
who did it. Poss denied making the report and, told Howell that he did not know'
that any charges had been filed nor did he know who had done it if there had been.
Poss asked Howell what the charges were, and Howell told him that they pertained
to use of an unqualified driver and firing Larkins when the tachograph and speed-
ometer were not working properly. According to Poss, he'told Howell that he
knew nothing of the charges "although I couldn't say that they were unjust
charges." Howell again repeated that he had reason to believe Poss had made the
79 The first complaint was attributed by Howell to the fact that a new employee was
inadvertently allowed to drive a pickup due to Assistant Terminal Manager'Marler's lack
of knowledge that he did not have a chauffeur's license and driver's checkout. This com-
plaint had merit.
80 Following Howell's visit to Gatling, an ICC investigator was sent to the terminal to
examine the tachograph, but it appears that no further action was taken thereafter by
the ICC.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charges, and Poss again denied it. Howell informed Poss the decision had been
made that he had made malicious charges against the Company and that Howell had
no alternative other than to dismiss him. Poss subsequently received by mail a
separation slip dated April 29, 1965, stating that he was discharged for "improper
efforts to damage the Company." 81
Poss denied making the complaint to the ICC, but testified that after Larkins'
discharge, he discussed the tachograph with Reed, the Teamsters business agent,
and asked what he could do for Larkins. Reed suggested that Poss could call the
ICC. Poss also testified that he discussed with fellow employee James Cripps the
possibility of reporting the tachograph to the ICC.
e. Davis Robertson
Davis Robertson was among the most senior employees at the Nashville terminal.
Robertson signed an application for membership in the Teamsters on March 12,
1965, and began to wear a Teamsters button at work the day after the Teamsters
request for recognition. As indicated above, Robertson made a number of com-
plaints about the tachograph in tractor 248 after Larkins' discharge, and Robertson
repeated his complaint in an interview with Thurston around June 1 .82 In that
interview Thurston told Robertson' he believed he could beat the Teamsters in an
election , and despite Robertson's known Teamsters adherence, asked Robertson to
use his influence with the other men. Robertson replied that the men with whom
he might have had influence had been discharged. On June 16, 1965, Robertson
was discharged, according to his separation notice for "excessive accidents in one
year and not complying with instructions reporting accidents."
In December 1964, Robertson had an accident under adverse weather conditions,
causing substantial damage . Robertson was given a written reprimand which stated
"Driver to be issued a written reprimand for traveling too fast for condition of
highway and weather, negligence in deceleration of tractor and for the first avoid-
able accident within 12 months." Although at the time Robertson disputed the
chargeability of that accident, he conceded at the hearing that that accident was
properly charged against him within the meaning of Respondent's rules discussed
below.83
On Friday, June 4, 1965, while Robertson was backing his trailer into a ware-
house at Springfield, Tennessee, the right front fender of his tractor struck a utility
pole and was damaged. Robertson waited to report the accident until he reached
Clarksville about 4 to 41/2 hours later from which he usually called the terminal
for instructions. His report was taken by Mader. At Marler's instruction, he
reported the accident to Acting Terminal Manager Cathey the following morning.
Cathey then told Robertson to take an accident report home and fill it out.
Robertson turned in the written report on the following Tuesday, apparently with
Cathey's acquiescence . Although the amount of damage was not great, Robertson
conceded that this accident was also chargeable to him.
On the morning of June 11, Cathey talked to Robertson about safety on the
highways and the cost of accidents to the Respondent. On that day while traveling
through Springfield, Tennessee, Robertson's trailer caught an overhanging telephone
cable just beyond a caution light and stretched or broke it causing it to hang down.
A local policeman witnessed the accident. Robertson stopped to report the accident
to the telephone company and waited for a telephone company representative to
arrive. While at the scene, Robertson gave the policeman a card to fill out from
his accident-reporting kit which Respondent furnished. On the card next to the
printed question "Was our driver at fault? (Yes or No)," the policeman wrote "No."
Next to the words "Explain briefly," he wrote, "Cable was too low for trailer clear-
ance." The policeman signed the card with his name , address, and home and office
telephone numbers. The card indicated that he witnessed the accident but not that
he was a policeman. Robertson again waited until he reached Clarksville and about
>tt Poss' testimony as to his conversation with Howell at the time he was terminated
is uncontradicted and is credited.
83 Thurston testified that this was the first time he heard of problems with the tacho-
graph on tractor 248. Thurston was involved in Poss' discharge and clearly heard of the
complaints before this interview.
83 "Chargeable" and "avoidable" appear to have been used interchangeably by Respond-
ent and its drivers. Robertson had an earlier accident in 1961 for which, insofar as the
record shows, he was not charged.
THURSTON MOTOR LINES, INC. 1295
21/2 hours later reported the accident to Cathey by telephone. Cathey asked if he
should come to the scene of the accident. Robertson told him that he was in
Clarksville and advised him not to come. Cathey told Robertson he would have to
go to investigate it and instructed Robertson to fill out an accident report when he
got back to the terminal. Either that evening on his return to the terminal or on
the following day, Robertson filled out the report and gave it to Cathey. With it
Robertson turned in the card which the policeman had filled out. At that time
Cathey again told Robertson he would have to go to investigate the acident because
the telephone company might decide to sue the Company. Robertson replied that
the telephone company could not possibly make a claim as the cable was hanging
too low.
On June 16, Cathey called Robertson to his office and informed him that he had
received word from Charlotte about Robertson's accidents. Robertson asked if he
was fired. Cathey said that he was, that Cathey did not know anything about it,
and that he had only done what he had been told to do. He also commented that
Robertson's accident records were in Charlotte 84
Neither Safety Director Lamm, who recommended the discharge, nor Cathey
testified concerning Robertson's discharge, though Cathey did appear as witness for
Respondent. However both Respondent's President Thurston and Vice President
Walker testified that they were consulted by Lamm before he recommended the dis-
charge. Thurston testified that he was informed by Lamm that Robertson had had
four accidents within a year and had not followed instructions with respect to report-
ing accidents. According to Thurston, Lamm consulted with him to inquire whether
he should follow normal policy and discharge Robertson in view of the number of
charges that had been filed and the problems they were having. Walker testified
that Lamm told him that Robertson was to be discharged because "he had three
avoidable accidents within, I believe, it was six months and four total accidents
within a year." Walker was aware of no other reason for the discharge.
Respondent's most recent set of rules governing the employment of drivers, dated
November 5, 1964, provides in Rule 38 "AN ACCIDENT WILL BE CON-
SIDERED AS CHARGEABLE AGAINST A DRIVER'S RECORD IF HE
COULD HAVE PREVENTED THE ACCIDENT, EVEN THOUGH THE
OTHER PARTY IS ALSO PARTIALLY AT FAULT." 85
Rule 9 provides with respect to reporting of accidents:
A DRIVER MUST IMMEDIATELY REPORT EVERY ACCIDENT
REGARDLESS OF HOW SMALL OR WHO IS TO BLAME. This report
must be made by telephone to the nearest terminal manager to the scene of
the accident. This applies to damage to company vehicles and property as
well as damage and injury to others.
In the event a driver cannot locate the nearest terminal manager, he should
immediately call the safety department. Every vehicle accident must be
reported in writing complete and in full on the Company Accident Report
form. Failure to report an accident as outlined herein will necessitate dis-
missal of the employee involved. The accident report and courtesy cards pro-
vided must be used at the scene of the accident. The accident report should be
completed at the scene of the accident in addition to recording thereon the
names of witnesses and investigating officers. The written accident report must
be turned into the terminal manager personally by the driver upon his return
to the home terminal.
If the driver has not attended safety meetings of the Company and is not
thoroughly familiar with what to do in case of an accident he should not be
dispatched.se
"These findings are all based on the credited uncontradicted testimony of Robertson
"'In 1962 Robertson signed a receipt for four items : Rules governing employment with
Thurston Motor Lines, Inc. ; Instructions applicable to drivers of motor vehicles ; ICC
safety rules and regulations, and an accident reporting kit Robertson identified a copy
of the rules governing employment with Thurston Motor Lines, Inc., dated June 5, 1962,
as a copy of the rules which he received when he signed the receipt. The rules relating to
chargeability and reporting of accidents do not appear therein. The evidence does not
disclose the instructions applicable to drivers of motor vehicles which were given to
Robertson in 1962. However, at all times material it appears that the 1964 rules were
in effect.
80 Section 192.40 of the ICC Revised Safety Regulations which also apply require that
the driver report "all details of the accident as soon as practicable after the accident."
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence with respect to the Respondent's rule or policy for excessive acci-
dents is less clear. Thurston testified that Respondent furnishes an instruction
manual to terminal managers in which there is an instruction relating to discipli-
nary procedures for three chargeable accidents within 1 year. According to Thur-
ston, copies of these instructions were not placed in employee's hands, but the pro-
cedures were common knowledge among the employees and were imparted to the
employees at safety meetings and in conversation. Walker testified similarly. How-
ever, despite confusion in the testimony described below as to the nature of the
rule or policy, no documentary evidence'was introduced to support the claim. The
rules furnished the drivers do not mention discipline for excessive accidents in 1
year, and an excerpt from .a company "Instruction Manual" listing offenses for
which discharge is mandatory does not include three chargeable accidents within a
year,87 although it is Respondent's contention that discharge was mandatory for
that offense. In the absence of any supporting documentary evidence, the omission
of such a rule from the list of offenses for which discharge is mandatory, and my
findings otherwise with respect to the testimony of Thurston, I conclude that there
was no written instruction to the managers such as Thurston described.
Thurston testified that the applicable rule relating to discharge for excessive acci-
dents was:
Three accidents of a chargeable nature is just positively discharge and three,
even part chargeable parts might require a thorough investigation of the mat-
ter and the determination of whether the employee should be or should not be
dismissed.
Thurston added that a driver could be discharged for one or two accidents if bad
enough and indicative of complete negligence and lack of concern. Subsequently
Thurston added in response to a leading 'question by Respondent's counsel that
three chargeable accidents within a year was a compulsory dismissal offense. Vice
President Walker testified initially that Safety Director Lamm makes recommenda-
tions to the terminal managers with respect to discharges for excessive accidents,
which are "pretty generally followed." 88 Walker also testified that he knew of no
instance in which an employee had three chargeable accidents of any size within
1 year without being discharged; and Thurston identified a list of employees who
were discharged for excessive accidents, all of whom were discharged for three
accidents or less. Walters, who was once discharged for excessive accidents, but
whose discharge was rescinded when two accidents were held not chargeable on an
appeal, testified that company policy provided for discharge for three chargeable
accidents.
Jackson, who was Robertson's son-in-law, testified that he had heard that if he
had three chargeable -accidents in 1 year he would be discharged 89 and imagined
that all the drivers had heard it. Robertson testified that he heard, about drivers
being discharged for three chargeable accidents.
The testimony of Thurston and Walker is far from convincing. Their erroneous
testimony that Robertson was discharged for four `chargeable accidents within a
year not only raises a question with respect to their recollections concerning
Robertson's discharge, but 'also conflicts with Respondent's contention that three
accidents within 1 year resulted in mandatory 'discharge.
Nonetheless, the testimony of Jackson and Poss suggests that three accidents is a
-critical number in Respondent's policy, rather than some other number, and the
reprimand given Robertson'at the time of his first chargeable accident, as well as
ar The list of offenses includes other road infractions as well as general disciplinary
'breaches.
In response to a leading question by Respondent 's counsel , which was phrased so as
to leave in doubt whether the significant number of accidents was three or four, Walker
agreed that terminal managers bad no discretion with respect to the penalty for breach
of the excessive accident policy. In view of the manner in which it was adduced, I find
this response of no probative value to negate the inference to be drawn from his initial
testimony that terminal managers had some discretion ,in the application of the excessive
.accident policy.-
se Jackson and Walker testified that this was common practice in the trucking industry.
THURSTON MOTOR LINES, INC. 1297
Jackson's testimony, suggests that 1 year is the significant period of time in the
administration of the policy.90
However, while it thus appears that there was a general policy of discharge for
three chargeable accidents within 1 year, the rigidity of the application of the policy
is left in doubt by Thurston's quoted testimony with respect to partly chargeable
accidents, and by the testimony of Walker that terminal managers have some dis-
cretion in the application of the policy.91
f. Larry Storey
The circumstances leading to Storey's transfer from the office to a driving job are
set forth above and need no repetition. One Saturday after his transfer, while
Storey was working on the dock, Richey, another employee, commented that he
wished he came in earlier and got off earlier. Storey said, "Well, they can let you
come in and let you go about anytime they want to, because we don't have too
much security around here." The following Monday, Walters asked Storey if he
had said that there was not any security at Thurston. Storey denied it, and Walters
said he did not think Storey would say something like that. Walters went into
the office and a few minutes later told Storey that Howell wanted to talk to him.
Howell asked Storey about the incident, and Storey denied that he had said any-
thing. Howell said he was going to do some checking and that if he found out
that Storey was lying, he would send him out the door because Mr. Thurston
would not stand for things like this 92
Shortly after going on the dock to work Storey signed a card for the TEA at
Walters' request, and Storey attended the TEA dinner meeting on April 26, de-
scribed above. Walters invited him to attend, representing to him, apparently with-
out foundation, that the Company was giving the dinner.93
On June 11, 1965, the Regional Director issued his first consolidated complaint in
this case. Paragraph 16 of that complaint included the allegation that "on or about
April 13, 1965, Respondent transferred an employee from billing clerk to dock
employee," in violation of Section 8(a)(1). This paragraph had obvious reference
to Storey.
When TEA dues were deducted from the employees' paychecks, Storey asked
Walters what the deduction was for.94 Walters laughed and said, "you are a mem-
ber of TEA aren't you?" Storey replied that he was. Walters asked him what else
was he a member of. Storey replied he was a member of his own organization.
Walters asked if that was all, and Storey did not reply. Walters then said he heard
that "You're all signed up but six, is that right." Storey said he did not know, and
went on to say that he did not think it was right to take $3 out of their pay when
there was not even a contract.
On July 19 Storey was discharged. The principal cause alleged was moonlighting
for Viking, another carrier. Storey's part-time employment with Viking began dur-
ing the latter part of February, 1965, while Storey was still employed as a clerk.
It is uncontradicted that Storey told both Assistant Terminal Manager Marler and
Walters about it within a week after he started. Some time later Storey also spoke
9u The General Counsel argues that the printed form on which the reprimand was typed
indicates at the bottom that 6 months was the critical period because it states "This
reprimand will not be effective for a separation if you have a clear record for the next six
months." I regard this printed general language , which apparently applies to all repri-
mands for any cause , of less significance than the specific warning typed thereon "for the
first avoidable accident within 12 months."
81 See footnote 88, supra.
e7 Storey's testimony with respect to this incident is uncontradicted and is credited.
Howell's testimony does not contradict Storey and is itself revealing . Howell testified
that he asked Storey about the incident because "I felt that an investigation should be
made, because of the fact that a new man would go around making such statements to
new employees." Howell testified that the Union was probably involved in the conversa-
tion, that Storey said he was not a 'union man and never would be, and that ended the
matter as far as he could recall.
e3 Storey's testimony in this regard was also uncontradicted.
64 The first deduction was made on June 12
243-084-67-vol. 159-83
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Howell about it. Howell told him the Company did not think it was good policy
for him to work part-time for another carrier, but did not tell him to stop doing so.
On March 8, 1965, a notice was posted on Respondent' s terminal bulletin board
on the subject of moonlighting. The notice indicated that it had come to the atten-
tion of the Company that a few of the full-time employees had been working for
other companies on their off days or during their off hours, and that a no-
moonlighting policy had been established to become effective with the posting of
the notice on the bulletin board. The notice included the following:
Since it is not in the best interest of either the employees or the Company,
employees are not permitted to work for other companies on a full or part-
time basis while in the regular employment of Thurston Motor Lines, Inc. This
policy applies to all regular, full-time employees in all job classifications but
not to those employees who are specifically hired on a part-time basis. Any
employee found to be disregarding this policy, either in its specific wording or
in its intent, will be subject to immediate dismissal . All managers are hereby
instructed not to hire employees for part-time work if they are employed full-
time in other companies.
No one told Storey thereafter that it would be all right for him to continue his
outside employment. Storey read the notice but continued his outside work. As
indicated above, on June 1, Howell left the terminal , and Cathey became acting
manager.
On July 19 Cathey called Storey to his office and asked him if he worked at Vik-
ing on Saturdays. Storey replied that he did. Cathey then told Storey that some-
one had called the previous day and reported seeing him driving with the door to
his truck open. Storey denied the charge and asserted that he never drove with the
door open. Cathey then said that he had called Charlotte, had reported Storey's
moonlighting, and had been told to discharge Storey. During the conversation
Cathey also referred to Storey's loss of a roll of wire from his truck and damage to
a newly poured driveway by Storey. After Cathey told Storey that he was to be
discharged, Storey said that he knew that if he had not signed a Teamsters card he
certainly would not be getting fired. Cathey replied that he did not know Storey
had signed. Storey was given a separation slip stating as the grounds of his dis-
charge, "Carelessness in handling freight and equipment and displaying lack of
concern for company policy by working on another job while working full-time for
Thurston Motor Lines."
On the following day, when Storey went to the terminal to get his pay, Walters
remarked that he knew all along that Storey was for the Teamsters.
Cathey's testimony with respect to the circumstances which led to Storey's dis-
charge was confused and contradictory. He testified that he discharged Storey for
violation of company policy against moonlighting but had other reasons if he needed
them. Cathey also testified that Storey' s moonlighting was general knowledge
around the terminal, but that he learned that it was general knowledge only after
Storey's discharge. On direct examination he testified that he learned of Storey's
moonlighting by telephoning Viking's office manager, who was a personal friend,
inquiring and receiving an affirmative reply. Cathey testified that he did not know
of Storey's moonlighting before then. Cathey testified that after calling Viking, he
contacted Walker in Charlotte who "asked me to investigate this thoroughly which I
did " Cathey denied any knowledge of Storey's union activity.
. On cross-examination Cathey specifically affirmed and repeated that he called the
Viking office manager before calling. Walker in Charlotte and that he found out
"officially" from Viking that Storey was working there before calling Walker.
Cathey testified further that he had not known it before "unofficially " Cathey then
testified that the call to Viking was precipitated because he heard from someone
that Storey was woiking at Viking and he called to confirm what he had heard.
After affirming once again that he called Walker after talking to Viking, Cathey was
asked:
Q. What did you do to investigate it after you talked to Mr. Walker?
A. I went and made it official by calling.
Q. Who?
A. Viking Truck Line's office manager.
Q. Again?
A. Again? I called him once is the only time.
While inconsistencies in testimony may arise from inadvertence , misunderstanding
of questions , or revival of an incomplete recollection while testifying , the inconsist-
ency between Cathey's first and second versions of the sequences of his telephone
THURSTON MOTOR LINES, INC. 1299
calls on the day of Storey's discharge are basic and may not be attributed to such
harmless cause Cathey's testimony as a whole was brief and covered little other
than events surrounding Storey's discharge. His answers were generally short,
guarded, and lacking in detail. Only after Cathey was asked what he did to investi-
gate the charge against Storey following Walker's request that he do so did he
switch his testimony as to the sequence of the calls, although Cathey himself volun-
teered in his initial testimony that Walker asked him to investigate thoroughly and
that he did If the sequence of the calls were as Cathey originally testified, the
nature of his investigation after Walker's call and what he discovered would be
critical importance to a determination of the reasons for Storey's discharge 95 This
inconsistency in Cathey's testimony is not the only source of doubt. His initial testi-
mony as to his knowledge of Storey's Teamsters activities is at best ambiguous, and
there is independent reason to doubt that Cathey was quite so ignorant of Storey's
activities as he professed. Although Cathey became acting terminal manager on
June 1, he had been regularly employed at the terminal before that time as a sales-
man. He was acting terminal manager when the complaint issued alleging Storey's
transfer as a violation of the Act and when Storey complained to Walters about
TEA dues deductions. I am constrained to conclude, after careful consideration of
Cathey's testimony and his demeanor while testifying, that Cathey changed his
testimony with respect to the sequence of his calls to Viking and Walker to conceal
a portion of the truth and that his testimony as to the state of his knowledge at the
time of Storey's discharge and the considerations which led to Storey's discharge
cannot be credited.
2. Concluding findings
a. The evidence supporting the complaint
There is substantial evidence to support the General Counsel's contention that
the discharges which occurred from April 8 to July 19 were caused by the union
activities of the dischargees. As set forth, there is substantial evidence of Respond-
ent's union animus, much of which is uncontradicted, and some of which consists
of explicit threats of discharge and other reprisal. Before the Teamsters request
for recognition, 6 of the 7 dischargees were among the 11 employees who signed
Teamsters application cards and 4 of them signed in the first week of the Teamsters
organizational efforts in January. Although McDole attempted to conceal his
activity from Howell until the demand was made, some of the Teamsters activity
was carried on openly, and Howell by his own admission, as well as by inference
from his interrogation before the Teamsters demand, was aware of the organiza-
tional activity at the terminal. Four of the discharges, McDole, Poss, Larkins, and
Screws were interrogated by Howell as to their reasons for supporting the Team-
sters, and Howell sought to dissuade them from their support, inviting Larkins and
Screws to let him know if they changed their minds, and telling McDole, when
Howell's efforts appeared unsuccessful, that McDole did not want his mind changed.
Two of the employees, McDole and Screws, whose prior union affiliations were
known to Howell, were warned at the time of hire to have nothing to do with the
Teamsters while in Respondent's employ on pain of discharge. Again when Howell
interrogated Screws and McDole after the Teamsters request for bargaining, Howell
asked Screws to abandon the Teamsters so that his name would not be on the list
of those reported as having anything to do with the Union, and warned McDole
that he would be in better shape to profit by Respondent's profit-sharing plan if he
withdrew his union support.96
Storey, who became a driver on April 13 only after numerous assurances that
he would not support the Teamsters but signed a Teamsters application on April 16,
was warned several times he would be discharged if Howell discovered that he
supported the Teamsters. Howell demonstrated that the threat was not idle when
he interrogated Storey after his transfer with respect to a chance remark to Richey
about job security,97 and again repeated the threat of discharge should he discover
that Storey's denial of the remark was untrue. Although Storey, unlike the other
es If investigation disclosed that Marler and Howell had known of Storey 's moonlighting
and had done nothing about it since the March 8 notice was posted, the case against
Storey would have been completely different.
ea In the absence of further explanation and in the light of Larkins' testimony indicat-
ing that eligibility to participate was based on length of service, I have construed this
warning as a veiled threat of discharge.
07 Other employees had told Howell when interrogated by him that concern over job
security was a reason for their Teamsters support.
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dischargees, does not appear to have revealed his Teamsters activity openly, his
offhand remark about job security clearly raised suspicion, and his later protest to
Walters about TEA dues deduction, as well as the inclusion of his transfer as an
allegation in the complaint against Respondent, could have left little doubt where
his true sympathies rested, as Walters asserted to Storey after Storey's discharge.
All but Screws and Storey were employees of some standing at the terminal
with work records which, insofar as appears, gave no cause for complaint. Three
of the seven discharges occurred within a space of 2 days and a fourth but a few
days later. Although each was based on allegedly different cause, except for Mohon
and Screws, who were discharged for related causes several days apart, the alleged
causes had existed for lengths of time varying from a few hours to a few months
before the discharges. The discharges commenced on the day that Vaughn's layoff,
found above to be discriminatory, was ended, and it was amidst the reshuffling and
hiring of new employees to replace the first of the dischargees that Vaughn and
Storey were made full-time drivers on the basis of their assurances to Howell that
they would not support the Teamsters.
Under these circumstances, I find that there is substantial evidence to support
the inference that the discharges were discriminatorily motivated and to establish a
prima facie case of violation. The question remains "whether Respondent's defense
has overcome the General Counsel's showing, that is, whether Respondent has
proved that its real motive for [the] discharges was not to discourage union activi-
ties but was rather to discipline" the dischargees for the various causes alleged.
Heck's Inc., 156 NLRB 760, 762-763.
b. Respondent's defenses
(1) Thomas Larkins
As the General Counsel has observed, a discharge for traffic violations based on
the uncontradicted testimony of a single observer is one of the easiest causes to
fabricate and one of the most difficult to disprove, particularly where as here, the
driver is not confronted with the charge until a week after the violations allegedly
occurred.
Basically, Respondent's defense is that on the basis of Leapley's written report
without any discussion with him and without any corroborating tachograph disc,98
Respondent's Safety Director Lamm instructed Howell to discharge Larkins. Leap-
ley's report contains a minimum of detail. While it is not totally implausible that
a decision to discharge would be based upon such a report lacking a corroborative
tachograph disc and without any discussion between patrolman and the safety
director, the contention that this was the case raises doubts, which Leapley's testi-
mony does not dispel.
As set forth above, Leapley's report indicates Larkins traveled at a "top speed"
of 60 miles per hour. In his testimony Leapley stated that after the State patrol-
man passed tractor 248, "the speed went back to 60 and above it, at times." When
asked how far above, Leapley testified "That is pretty hard to determine on a regu-
lar speedometer, 62, 63, but it was a'little above it at times " When asked whether
it was momentarily or sustained Leapley testified, "Well between the 60 and what-
ever the speed was above 60. It fluctuated back and faith, generally going down-
grade it would pick up and, then, maybe going upgrade, of course it would slow
down some, but I would say it was a sustained speed of 60, anyhow."
Larkins' truck was equipped with a governor, which mechanic Guynn testified
was in good working order. As indicated in a statement in Thurston's memoran-
dum to Lamm, governors were set so that drivers could not quite reach 60 miles
an hour. Thus, it would appear that Leapley's testimony is not only in conflict with
his report but also with the speed limitations of the truck. It is possible, however,
as to the latter that the discrepancy may be due to inaccuracy in the speedometer
in Leapley's car, which he identified as a regular speedometer. There is no evi-
dence that it had been calibrated or checked for accuracy, and there is substantial
possibility for error in an ordinary speedometer. See People v. Dusing, 155
N.E.2d 393, People v. Heyser, 141 N.E.2d 553. However, this possibility does not
explain the discrepancy between what Leapley testified that he observed and what
he wrote.
ea It is conceded that Larkins' tractor had no disc in its tachograph on April 1. Un-
like an ordinary speedometer, a tachograph not only indicates speed to the driver at any
instant in time but also is capable of making a written record of the truck's speed over
.an interval of time if its clock is wound and a paper disc is inserted.
THURSTON MOTOR LINES, INC. 1301
In his testimony, Leapley was asked to explain what was meant by his remark
in the report that the driver was following too close to "other traffic as well as
myself." Leapley's explanation was "Well actually, to get a good check on him,
I was a little closer in traffic than I probably should have been normally, but to
get an accurate check, you have to get pretty close to them " This explanation
rang false to me at the time it was given and continues to do so upon analysis of
the record. The reporting form obviously calls for a report of the violations of
the driver under observation, not of the patrolman. The sentence on its face indi-
cates that Leapley charged Larkins with following too close to Leapley as well as
other traffic. Leapley's explanation is contrary both to the plain meaning of what
he wrote and what one would expect from the nature of the report.
Doubts concerning Leapley's report and the Company' s reliance upon it in dis-
charging Larkins are magnified by examination of the exchange of correspondence
between Thurston and Lamm which led to Leapley's removal from his usual duties
and his assignment to patrol duty in the west end of Respondent's operations.
As Thurston's letter indicates much, it not all, of the matter set forth therein
was well known to Lamm, and the practices over which Thurston expressed concern
were not new but constituted constant problems. Despite its confidential label, the
letter has every appearance of a document intended for eyes other than Lamm's.99
The extensive contents of Thurston's letter, the fact that Lamm and Thurston were
both located in Charlotte, and the timing of the letter both in relation to the Team-
sters bargaining request, which had just been made, and the safety problem, which
was long standing, make it appear that the correspondence was intended to ration-
alize Leapley's assignment rather than to explain how it came about.
Although Thurston testified that apart from his correspondence with Lamm he
did not otherwise discuss the west-end speeding problems orally with Lamm before
the patrol was established, Thurston testified that Lamm talked to him before
Larkins was discharged and told him that he knew there were union problems which
would result in charges against the Company if Larkins were discharged. According
to Thurston, Lamm asked Thurston if he wanted to take a hand in it, and Thurston
replied that he did not and that the rules should be enforced. There is no expla-
nation as to how Lamm in Charlotte was aware of Larkins' union affiliations before
the decision to discharge him was made. In the light of the void in the record as
to communications between Lamm and the Nashville terminal up to the date of
Larkins' discharge, Lamm's inquiry of Thurston can only increase the mystery sur-
rounding Respondent's explanation of Larkins' discharge.10°
I conclude that Thurston's testimony cannot be relied on as establishing the whole
truth with respect to Larkins' discharge.ioi
Even if Leapley's assignment was deliberately timed to coincide with the Team-
sters activity, it is of course possible that Leapley nonetheless observed the traffic
violations which Leapley reported and that his discharge routinely followed
Respondent's practices. But in the light of the suspicious circumstances surround-
ing Leapley's assignment , the fact that Larkins' union activities were discussed
between Thurston and Lamm befoie the discharge and at a time when no other
unfair labor practice charges were pending, the timing of the discharge both in rela-
tion to the Teamsters request to bargain and the other discharges, and the discrep-
ancies between Leapley's report and his testimony set forth above, I have concluded
that Leapley's testimony with respect to the gross traffic violations by Larkins, a
driver with almost 5 years' seniority and a clean record, cannot be credited.
Accordingly, I find that Larkins was not discharged for cause, but was discharged
because of his union activities as part of an overall course of action to weed out
Teamsters adherents and replace them, after Larkins' assignment to the peddle run
left him vulnerable to the charge that he had been observed in violation of Respond-
ent's rules.
(2) Jackie McDole
The alleged cause of McDole's discharge was the telephone call made by him to
the home of Respondent's customer Shelton. Until the day of his discharge, insofar
00 In its first paragraph the letter states that "two reputable good men" had come to
Thurston with respect to speeding in the west end. Thurston could not identify the
reputable men to whom he referred.
100 Howell testified that he had nothing to do with Larkins' discharge and merely fol-
lowed instructions from Charlotte Lamm did not testify
loi As I have elsewhere found herein, in addition to the above considerations, there is
substantial additional cause to question Thurston 's credibility.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the record shows, McDole's record was unblemished. Although Shelton was
angered by McDole's telephone call and expressed his anger to Howell, the nature
of the call from McDole to Mrs. Shelton, as disclosed by Shelton's letter, did not
indicate such inherent impropriety that McDole's presence could not be tolerated
for even another day. The conversation set forth in Shelton's letter corroborated
McDole's explanation that he had called only to determine whether anyone was
sick at the Shelton home. The situation could well have been improved by giving
Shelton time to cool off. McDole's insistence that he could straighten the matter
out with Shelton, despite the fact that McDole was the object of Shelton's anger,
would tend to indicate that Shelton's complaint was more the product of a quick
temper than of misconduct by McDole. As Howell admitted, the situation posed
by Shelton's complaint was novel, and he did not know exactly what to do. There
was no rule prohibiting employee contact with customers outside the regular course
of business nor had employees otherwise been warned against such contacts. In the
event that there was a misunderstanding and that McDole's explanation could satisfy
Shelton that his call had no guilty purpose, the need for drastic disciplinary action
would have disappeared as quickly as it arose. In sum, nothing in the situation
demanded peremptory discharge of McDole without giving him an opportunity to
adjust the matter. The major vice in his conduct lay in its threat to Respondent's
relations with its customer, and if McDole had been able to satisfy the customer,
that threat would have been removed.
Indeed, as McDole testified without contradiction, and Walker's written statement
of position bears out, the heart of the charge against McDole was that his questions
and comments to Mrs. Shelton were uncalled for and indicated that he was trying
to go with Mrs. Shelton,102 Shelton may well have believed so, but McDole's
ready admission to Howell that he made the call, his honest report of its contents,
corroborated by Shelton's letter, and his readiness to see Shelton to straighten out
the matter indicated that there was substantial reason to doubt that Shelton's belief
was justifiable and to believe that McDole could be given the opportunity to adjust
the matter with some chance of success and without harm to Respondent. Despite
Shelton's anger, Howell in his initial reaction to Shelton's report appears to have
been of this opinion. He testified that he ended his telephone conversation with
Shelton "by advising him that we would let him know anything that we could to
justify or help him, and he thanked me and he said he would handle if from that
end." Howell also testified that he told Shelton he would "try to get the matter
straightened out, if at all possible."
After calling Walker, however, Howell did nothing to try to straighten the matter
out nor did he contact Shelton again to advise Shelton what he had learned or done.
In the light of these circumstances I conclude that the peremptory decision to
discharge McDole was motivated by the desire to utilize the fortuity of Shelton's
complaint as a pretext in order to rid Respondent of an active Teamsters adherent
whom Howell had failed to dissuade despite intimidatory efforts.
Nothing in the events following McDole's discharge alters this result. Shelton's
failure to call Howell, as McDole told him he would, the day after McDole's dis-
charge might well have had bearing if Howell had given McDole a chance to
straighten the matter out. However, as McDole had already been discharged,
Shelton's failure to call Howell could not have any bearing upon the determination
to discharge him. On the other hand, Howell's persistent efforts to discourage
McDole in his efforts to straighten the matter out with Shelton indicate that the
incident between McDole and Shelton was not itself the motivating cause for the
discharge. Even when McDole persisted and brought Howell a letter from Shelton,
Howell refused even to look at it and would have nothing further to do with the
matter. As indicated by Thurston's description of the operation of the Company's
rules with respect to chargeable accidents, terminal managers, who had consider-
able authority, interceded at other times when the management in Charlotte decreed
that employees should be discharged. Even if it would have been necessary for
Walker to authorize rescession of the discharge, there was no reason why Howell
102 In his written statement , Walker stated that Howell called back after investigating
the matter to report McDole did not deny making the call or the conversation and "that
there was no question in his, Mr . Howell's mind , but that McDole was making unjustifiable
advances to her." While I consider this statement revealing as to the nature of the
alleged cause for McDole's discharge , I do not accept Walker 's statement as an accurate
recital of the facts relating to McDole 's discharge . Clearly the time sequence set forth
in the statement is inaccurate , and it was written to put Respondent 's best foot forward.
THURSTON MOTOR LINES, INC. 1303
could not have come to McDole's aid by communicating to Walker any newly dis-
covered evidence. Howell's adamant refusal to have anything more to do with the
matter is further indication that the McDole's alleged misconduct was rationaliza-
tion for and not the true cause of McDole's discharge.
I find under all the circumstances that the true cause of McDole's discharge was
his activity and membership in the Teamsters Union. Accordingly I conclude that
McDole's discharge violated Section 8(a)(3) of the Act.
(3) Thomas Mohon and James Screws
The stated cause for the discharges of Mohon and Screws was negligence and
inefficiency in the handling of freight. There is no doubt that Respondent was
engaged in a system-wide campaign to reduce the incidence of loading errors and
claims against it arising at all its terminals. And there can be little doubt that
Howell, who admitted a poor record to company headquarters at the end of 1964
despite performance considerably better than average, must have been disturbed
by the claims charged to his terminal in January and February far in excess of the
budgeted amount after the headquarters campaign was under way.
Nonetheless, the evidence in the record falls far short of establishing that either
Mahon or Screws, let alone both, were responsible for the claims attributed to
Nashville in the months of January and February or that their record following
Howell's late March warning continued to be poor.
Until Howell's March 12 letter, there is every indication in Howell's correspond-
ence that he considered the problem terminal-wide. Whether he held such meetings
or not, he at least informed Charlotte in his December 30 statement that he had
started a drive through group meetings and terminal meetings. Simultaneously,
his bulletin-board notice posted on January 22 was addressed to all drivers and
warehousemen. Quite clearly Howell then viewed all drivers and warehousemen
as possible sources of loading errors and damage claims.103 Moreover, while
there is substantial correlation between claims and errors in checking and loading,
the periodic letters from Charlotte to all terminal employees indicate that not all
claims or errors discovered in unloading can be attributed to those who check and
load trailers. For example, overages and shortages in the no-bill or no-freight
category may be the fault of the rate and billing clerks and manifest clerks rather
than of those who check and load. Concealed damages may be caused by improper
handling or stowing by pickup or interline drivers as well as by those loading
and unloading Respondent's outbound and over-the-road trailers.104 In view of
these factors, it cannot be presumed that Mohon and Screws were jointly or indi-
vidually responsible for any, and certainly not all, of the deficiencies in the per-
formance of the Nashville terminal.
Howell's March 12 letter stated a more specific basis for narrowing responsibility
for claims to Mohon and Screws jointly, namely, that his records showed that
checking and loading of interline traffic was the apparent cause of the bad claims
picture at Nashville, and that Mohon and Screws handled all the interline traffic.
In his letter, Howell also stated that both had received verbal and written repri-
mands for their negligence and indicated that disciplinary action should have been
previously taken. However, this letter, which was written with awareness of the
union activities, is not supported by any corroborating evidence on its crucial points.
Although Mohon and Screws may have loaded most of the interline traffic, as
distinguished from that picked up locally by Respondent's drivers, there is no testi-
mony or documentary evidence to establish that interline traffic was the apparent
cause of the problem. While a few bills were shown to Mohon and Screws which
they had initialed, there is no indication other than in this letter and his testimony
that Howell made any effort to run down the source of the problem by a systematic
check of records. Considering the fact that there were only 90 damage claims in
total attributed to Nashville during the months of January, February, and
March, and a number of the particulars relating to these claims must have been
identified in the processing of the claims, the failure to produce any documentary
303 Mohon and Screws together performed 75 to 80 percent of the outbound loading. As
the weekly volume of shipments was in excess of 500, at least 100 shipments a week were
loaded by others.
104 To the extent that the figures set forth above indicate , there were substantial errors
and claims in these categories. ,
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence to support the assertion in Howell's letter renders suspect its claim 105
Indeed if the information was not available, then Howell's letter and testimony
were clearly unsupportable, and if the information to which he specifically referred
in his letter and his testimony was available, there was no reason shown why it
could not have been produced.los
Howell's claim in his letter that Mohon and Screws had been reprimanded ver-
bally and in writing is likewise unsupported. There is no evidence, not even in
Howell's testimony, to support Howell's assertion in the letter that Mohon and
Screws had received written reprimands. While there is evidence that Screws was
verbally reprimanded at the time of his transfer to daywork and shortly thereafter
in October 1964, there is no such evidence with respect to Mohon. To the con-
trary, all the evidence is to the effect that Mohon's prior record was good. His
February pay increase, absent explanation, supports the conclusion that it was
still considered good in February, and there was nothing in his record to support
Howell's assertion that Mohon's personnel record indicated that disciplinary action
should have been previously taken. Indeed although Howell testified, and I have
found, that he talked to Mohon and Screws about loading errors three or four
times between December and the time of their discharges, Howell did not claim
that he reprimanded them or charged them with personal responsibility for the
loading errors until a week or more after the March 12 letter was written when
he gave them 2 weeks to improve.
Under these circumstances, I conclude that the March 12 letter, which concedes
knowledge of "labor problems," absent corroboration, cannot be taken as estab-
lishing the truth of the contents. To the contrary, every indication is that it was
a self-serving document prepared with a view toward the day when some justifica-
tion for the discharges of Mohon and Screws might be needed.107
Casting further discredit on the claim that Mohon and Screws were discharged
for cause, is the failure of the evidence to support Howell's claim that after he
gave Mohon and Screws 2 weeks to improve, they did better briefly and then
reverted and committed a great number of errors again. If, as Howell testified,
he spoke to them on March 26, even assuming that loading errors could be
attributed to them, it would appear that their performance in the following week
did improve and that there was some decline in the following week. But the rate
of shipments to errors in both weeks was relatively high in comparison to past
performance at Nashville and in comparison to the ratios at Respondent's other
terminals of all sizes. Moreover, the weekly report for the week ending April 9
could not have been in Howell's possession on April 9 when Mohon was discharged,
and the record is silent as to the basis, if any, Howell may have had for assessing
their performance during that week. If, as is most likely, the information which
Howell received after fiist speaking to Mohon and Screws pertained to the weeks
ending March 26 and April 2, then all that Howell had before him showed improve-
ment and no decline.
The evidence with respect to claims gives no greater support to Howell, for the
claim reports for March, if they had been compiled and reached Howell by the
time of the discharges, showed substantial improvement. In view of Screws uncon-
tradicted testimony that Howell said he had not received any reports yet in response
to Screws' question about loading claims, I conclude that Howell had no specific
knowledge of claims, certainly as to the period after April 1, on which to base his
assertion that Screws and Mohon had not improved.
106 In a letter dated April 13 after Mohon's discharge to all terminal managers from
Thomas, the claims agent, Thomas discussed the difficulty in establishing responsibility
for claims because of lack of information furnished with inspection reports. In the course
of the letter Thomas stated, "Although we have for several weeks been advising the
Terminal Manager of individual claims charged to his terminal , we have had compara-
tively few comments or questions from you regarding these chargeouts." Moreover, when
Screws was reprimanded in October 1964, it was in connection with a specific shortage
which could have resulted in a substantial claim had the freight not been located It would
appear that information identifying the employees who loaded and checked shipments
which gave rise to claims was available for production at the hearing, but none was
produced.
101 Howell in his testimony did not mention finding that the problem was mostly in in-
terline shipments , as he did in his letter. He testified merely that after checking the
records, he considered Mohon and Screws marginal employees
107 Howell 's sketchy, unspecific testimony stands on no firmer footing and is not credited
THURSTON MOTOR LINES, INC. 1305
Moreover, as in the case of Howell's earlier assertion that they were responsible,
there was no evidence offered to corroborate the charge that Mohon and Screws
were responsible for the damage and loading errors that occurred after Howell
warned them 108 In his letter of April 10 to Walker, written after Mohon's dis-
charge and Screws' transfer, Howell cited as an example of their poor job the fact
that after working with them for a week, they had 14 wet, damaged, or short ship-
ments in one trailer alone. But no evidence was presented to support this charge
or to show that deficiencies were attributable to Mohon and Screws. Nor was any
other evidence produced to support Howell's general claim. In his letter Howell
cited as a further reason for Mohon's discharge the fact that his attitude was poor
and he was not at all receptive to Howell's conversation. However, from Howell's
testimony it appears that the only weakness in Mohon's attitude lay in his unwill-
ingness to concede responsibility for the errors and claims and his disputing their
cause with Howell 109
Finally, even assuming that Howell could have inferred that the errors and
claims were attributable to the day shift dockworkers as a group, there was no
basis shown for his conclusion that they were attributable to both Mohon and
Screws. Indeed, every indication would appear to the contrary. There is no evi-
dence of excessive claims or loading errors during Mohon's employment before
Screws was transferred to the day shift, and Mohon was given a raise in February
despite the existence of the problem. On the other hand, Screws was transferred
from the night shift after Lilley complained of his lack of initiative and was repri-
manded in connection with a shortage shortly after his transfer. There was thus
every reason to suspect that if the blame lay with either, it lay with Screws. Yet,
it was Mohan who was immediately discharged, and Screws was temporarily
retained but transferred back to Lilley's shift. I am satisfied that these actions
were taken without any real effort to assess responsibility for the high January and
February claims, because the claims were not their underlying cause.
In sum, I conclude that Howell's initial letter of March 12, his 2-week warning
to Mohon and Screws, and his action in discharging Mohon and transferring Screws
were based on their union activities in violation of Section 8(a)(3) and (1) of the
Act rather than on their work performance, and that the defense advanced to
Justify their discharges was erected to take advantage of the fortuitous system-wide
concurrent campaign to reduce loading errors and damage claims which had been
in progress for some time when the Teamsters request for recognition was made.
Although Howell briefly relented after recommending Screws' discharge in his
March 12 letter, in spite of his work history which was both shorter and poorer
than Mohon's, the evidence compels the conclusion that Howell had no real inten-
tion to attempt Screws' salvage. It may be fairly inferred from the rapidity with
which Howell discharged Screws a few days after his transfer and after an appar-
ently brief comment by Lilley which Howell construed as referring to Screws'
ability to do the job, that Howell's purported desire in his April 10 letter to give
Screws another chance was not genuine, but that Howell sought to let his brother's
friend down somewhat more easily than Mohon by assigning him to a job which
he might be expected to refuse or which if he did accept was likely to produce a
basis for discharge which Howell could more readily defend. I conclude that both
the transfer and the discharge were motivated by Screws' union activities.110
108 The bills Howell showed Motion and Screws on April 9 were not offered in evidence.
Motion and Screws may well have been responsible for some errors , but it does not follow
that they were responsible for all or excessive errors.
ins According to Howell, both Mohon and Screws protested his assertions that they were
responsible and suggested that the solution lay in stopping the drivers from loading at
night, which according to Howell "was in effect putting the problem back on me " This
assertion makes sense only if Howell's only solution to his problem lay, in placing the
blame on Motion and Screws regardless of what the facts warranted . Absent proof that
Motion and Screws were responsible , their attitude as described by Howell may not have
been acquiescent but also was not censurable.
llU The employment levels indicated by Respondent's pay records show that on Monday,
April 12, there were four employees who were made regular dockworkers for the first time.
Screws was discharged on Wednesday , April 14, and not until May 8 was another dock-
worker hired. The fact that Respondent managed with three regular dockworkers until
April 9 and utilized five or six thereafter without no major change in the, number of
weekly shipments , does nothing to confirm the claim that Mohon and Screws were marginal
employees.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) Glenn Poss
The stated reason for Poss' discharge was his "improper efforts to damage the
Company" by complaining to the Interstate Commerce Commission.
Apart from Howell's testimony as to what he observed on the paper in Gatling's
hand at the time of his visit to the local ICC office, there is some circumstantial
evidence to suggest that Poss was involved in the making of the report to the ICC.
Thus, Poss had threatened to Guynn that a report would be made, and Poss was
one of the principal finders of fault with the tachograph on tractor 248 after
Larkins' discharge."
On the other hand, absent the context of union activity in which Poss was prom-
inent and the apparent relationship of the tachograph complaint to Larkins' dis-
charge,112 it may be seriously questioned whether this evidence together with what
Howell observed at Gatling's office was sufficient basis for a conclusion that Poss
was responsible for the complaint. Howell's testimony as to his observation reduced
to its essence was that he thought he saw Poss' name on a piece of paper in Gat-
ling's hand. Assuming that he did, it is a substantial jump from that observation
to the conclusion that Poss made the complaint. Although, according to Thurston,
Howell told him he did not believe that Poss' name appeared as a witness, nothing
in Howell's testimony discloses any basis for that belief. Likewise, Howell's testi-
mony as to what he saw indicates substantially less certainty than Thurston testified
accompanied Howell's report. Indeed, apart from Howell's belief that Poss' name
appeared and the perhaps reasonable assumption that the document in Gatling's
hand related to the tachograph complaint, Howell gained no other knowledge as to
what the paper was or represented. In the light of the substantial evidence of
animus and my findings above with respect to Larkins, I conclude that Respondent's
decision to discharge Poss would not have been reached on the weak evidence
available to Respondent and in the face of the refusal of the ICC to identify the
complaint but for Poss' union activities.
However, even if Poss was discharged in good-faith belief that he had filed the
complaint with the ICC, I find that the result would be the same, regardless of the
accuracy of Respondent's belief. The complaints by Poss and Robertson to Guynn,
the writeups of the tachograph, and the complaint to the ICC, by whomever made,
and certainly if made by Poss, were made in the effort, discussed by Poss with
Reed, to help Larkins. Certainly after Howell talked to Galling, he had reason-
able cause so to believe. Although nothing was wrong with the tachograph in
tractor 248, mechanic Guynn made statements to Robertson and Poss which indi-
cated that there might be. Having been so informed by Guynn, there was at least
basis for doubt on the part of those employees who desired to help Larkins that
the tachograph was in proper working order. The effort to help Larkins, in which
at least Poss and Robertson participated along with Teamsters Business Agent
Reed, was concerted activity within the meaning of Section 7 of the Act. When
Respondent discharged Poss in the belief that he had complained to the Interstate
Commerce Commission in the course of that concerted activity, the discharge
violated Section 8(a)(1) of the Act, even if Respondent's belief were well founded,
unless the complaint to the ICC were made in bad faith, with knowledge of its
11 Apparently unknown to the Company was the fact that Poss also discussed with
Teamsters Business Agent Reed what could be done for Larkins with reference to the
tachograph, and that Reed suggested that Poss could report it. However, Howell's in-
vestigation must have disclosed that Poss was not alone in complaining to Guynn about
the tachograph. As Guynn testified, Poss' threat to report the tachograph was made while
Guynn was checking a complaint by Robertson . Also as Guynn testified , writeups and
complaints by at least Robertson and Poss, if not others , started immediately after
Larkins' discharge . In the light of the latter testimony , Howell 's testimony that the
tachograph had not been written up at the time of the complaint to the ICC is not credited.
is Although there is no evidence that Larkins raised the tachograph with Howell, the
timing of the complaints , which started immediately after Larkins ' discharge, and the
fact that they related to tractor 248 made the relationship evident . Gatling's question to
Howell as to whether anyone had been discharged further suggested the relationship. That
Howell accepted the suggestion is indicated by the fact that Howell named Larkins as the
discharges although Mohon, McDole, and Screws had also been discharged Gatling also
asked Howell whether the complaint was related to a labor dispute. The first Teamsters
charge in this case , which related to Larkins ' discharge , was filed on April 9
THURSTON MOTOR LINES, INC. 1307
falsity, or with intent to harass Respondent.113 The merit or lack of merit to the
complaint is immaterial.114 As the refusal of the Interstate Commerce Commission
to divulge the names of informants indicates, public-policy requires that employees
and private individuals be free to make complaints to public agencies without fear
of reprisal. It would be contrary to that policy to hold that the making of a com-
plaint to a public authority in the course of concerted activity removes the protec-
tion from the concerted activity, particularly where, as here, statements by the
Respondent's mechanic , although later amended by him, were such as to raise doubt
as to the condition of the tachograph. In the light of that evidence, as well as the
substantial grounds for the Teamsters adherents to believe that the discharges on
April 8, 9, and 14 were based on union activities and not the causes advanced by
Respondent to explain them, I cannot conclude that the protest, by whomever made,
was made in bad faith, with knowledge of its falsity, or with the intent to harass
Respondent. As Poss was clearly a participant in the concerted protests over the
tachograph to Respondent, and Respondent' s conclusion that he made the com-
plaint to the ICC was based in part on his role therein, it makes no difference
whether Respondent's belief that Poss made the complaint was well founded or
mistaken.115
Accordingly, even if Poss' discharge did not violate Section 8 (a)(3), as found
above, it violated Section 8 ( a)(1).116
(5) Davis Robertson
Respondent contends that Robertson was discharged for excessive accidents and
failure to follow Respondent's instructions for reporting accidents. This defense
rests on the testimony of Thurston and Walker that Robertson's discharge was
mandatory under company policy and followed Lamm's inquiry as to whether
the rules should be applied in Robertson's case because of the charges which had
already been filed as to other discharges at Nashville.
The evidence with respect to the policy regarding excessive accidents does not
establish the mandatory nature of the policy, as found. Although there appears
to have been a policy under which Respondent considered the continuation of
employment of drivers with three chargeable accidents within a year, according to
Walker, even when discharge was recommended by Respondent's safety director,
the decision to discharge was made by the terminal manager. That procedure was
not followed in Robertson's case. Secondly, as Thurston stated the rule, an unde-
fined concept of "part chargeable parts" would require a thorough investigation
before determining whether discharge would result. In the absence of and further
explanation, I am unwilling to conclude that partial fault of another party was not
a factor in determining whether an accident has "part chargeable parts." 117 Absent
evidence of what Respondent's investigation, if any, disclosed, or of the position
taken, if any, by the telephone company with respect to the cause of the accident,
the only evidence in the record indicates that the cable which Robertson's trailer
struck, in a town which Robertson regularly visited, was hanging too low on the
day that Robertson struck it. While Robertson was clearly required to avoid
113 Indiana Gear Works, a Division of the Buehler Corporation , 156 NLRB 397; Walla
Manufacturing Company, Inc., 137 NLRB 1317, 1319 , enfd. 321 F.2d 753 (C.A.D C ), cert.
denied 875 U.S. 923.
114 Socony Mobil Oil Company, Inc ., 153 NLRB 1244 , 1247 , 1248 . Despite self-serving
testimony that the discharge was based on the complaint concerning the tachograph and
not the complaint concerning use of an unqualified driver , Poss' uncontradicted testimony
was that Howell did not distinguish between the charges in his discharge interview. Even
if Respondent considered the complaint malicious only insofar as it related to the tacho-
graph, the fact is that one aspect of the complaint to the ICC was well founded.
m; N.L.R.B. v Burnup and Sims, Inc., 379 U.S. 21.
The complaint also alleges that Poss' discharge violated Section 8(a) (4). In view of
the findings already made and the fact that the remedy would in any event be the same,
I find it unnecessary to consider further the allegation of violation of Section 8(a) (4).
117 The definition of chargeable accident specifically provides for chargeability where an-
other party is partially at fault but is silent as to the effect of contributory negligence
upon the consequences to be attached to chargeability in such cases . In the light of
Thurston 's testimony that there are grades of chargeability , this' factor would appear to
be the most likely basis for amelioration of the offense.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
overhead obstructions as well as those on the ground, and as Thurston's testimony
indicated, encounters with overhead wires may entail substantial danger, Robert-
son's version of the accident and the eye-witness report which he submitted with
his accident ,report support the conclusion that the telephone company was partially
at fault. I cannot conclude under all these circumstances that application of
Respondent's policy routinely required Robertson's discharge.
As already noted, the testimony of Thurston and Walker as to what Lamm
reported to them as the cause of Robertson's discharge was clearly in error. In
the absence of any testimony by Lamm as to what evidence he had before him or
by Cathey as to the investigation he told Robertson he was going to make, the
decision to discharge Robertson remains shrouded in mystery.118 Absent evidence
that Robertson's discharge was clearly required by Respondent's policies in the face
of his long service, in the light of the admitted consideration of his union activities
in making the decision to discharge him; Robertson's role with Poss in the com-
plaints over the tachograph, which Robertson specifically called to Thurston's
attention after Poss' discharge; and the substantial evidence which I have found
above supports a prima facie case of discrimination, I conclude that Respondent's
defense with respect to Robertson has not been sustained and that Respondent
seized upon Robertson's accidents as an opportune excuse to rid itself of another
Teamsters supporter.
(6) Larry Storey
The main reason advanced by Respondent for Storey's discharge was his viola-
tion of Respondent's antimoonlighting policy. There is no contention by the Gen-
eral Counsel that the institution and posting of the policy in March was discrimi-
natorily motivated and most seriously intended Although Storey continued to
work part-time for Viking in violation of the policy, it is also clear that Storey's
part-time work at Viking was generally known around the terminal and that Howell,
who was then terminal manager, transferred Storey to driving duties despite knowl-
edge of Storey's moonlighting when satisfied that Storey was opposed to the
Teamsters, as found above. Nonetheless, had Cathey testified credibly to establish
that Howell's prior knowledge was not attributable to him and that he was unaware
of it when he discharged Storey, there would be little basis to conclude that Cathey's
reasons for discharging Storey were other than those which he advanced. Cathey,
however, did not so testify. Cathey was no stranger to the terminal or the men.
He was at the terminal throughout the period in question. The issuance of the
complaint and Storey's protest to Walters over TEA dues occurred after Cathey
became terminal manager. The conviction which Walters later voiced as to
Storey's Teamsters sympathies must have been born of these events. Although
,Cathey denied to Storey awareness of his Teamsters activity, as found above, I do
not credit the truthfulness of that denial. Cathey's failure to explain credibly what
his investigation disclosed after talking to Walker and what it consisted of, as found
above, leaves unanswered the inference otherwise to be drawn that Storey's moon-
lighting, which had been generally known around the terminal, was tolerated
until Respondent sought a pretext to discharge Storey after it became apparent that
Howell had erred in relying on Storey's assurances of his opposition to the Team-
sters. I conclude therefore that Storey's moonlighting was only a pretext 119 for
-the discharge and that his discharge violated Section 8(a)(3) of the Act.
u8 The added cause stated on Robertson 's separation notice was clearly insubstantial and
.a makeweight. Thurston's recollection was that Lamm reported, "There was a late re-
porting on one of them. It was not reported, he had not followed the instruction con-
cerning the reporting of accidents " Walker recalled no mention of this cause There is
no indication that Cathey took exception to or reported to Lamm the fact that Robertson
waited until making his regular telephone calls from Clarksville to notify Cathey of the
accidents on June 4 and 11. It also appears that Cathey acquiesced in the lateness of one
of the written reports, and is not established that the other was filed late.
119 Without the moonlighting , it is clear that Cathey himself considered the other
deficiencies attributed to Storey insubstantial grounds for discharge and that they were
added only to bolster the main cause which Cathey advanced. While the moonlighting
under other circumstances might have been a sufficient cause for Storey's discharge under
Respondent 's policies , "A justifiable cause for dismissal is no defense if it is a pretext and
not the moving cause." N.L.R .B. v. Solo Cup Company, 237 F.2d' 521 , 525 (CA. 8).
THURSTON MOTOR LINES, INC. 1309
1. The alleged refusal to baigain
As set forth in detail in section D, 1, above, on March 17, 1965, Secretary-
Treasurer Frank Reed of Teamsters Local 327 by letter to Howell, which was
received on March 19, claimed to represent a majority of the truckdrivers at the
Nashville terminal and stated his readiness to submit proof of representation to
any impartial third party.
On March 22, 1965, Reed filed his petition in Case 26-RC-2357 seeking a unit
of all the city drivers and dock employees at the terminal. On March 23, Howell
replied to Reed's March 17 letter referring Reed to the Respondent's home office
in Charlotte, and on March 29, Thurston replied to Reed's letter stating that cir-
cumstances coming to the Company's attention indicated that a majority of the
drivers did not wish to be represented by the Union.120 Thurston's letter stated
that it was not clear that the bargaining unit "which seems to be suggested in your
letter," would be appropriate. However despite indicating awareness of the Team-
sters petition , the letter made no comment with respect to the unit requested in the
petition, which Respondent subsequently agreed was appropriate.
At all times between March 17 and March 29, the Teamsters had valid applica-
tion cards from a majority of the 14 drivers, even assuming that both part-time
employees then on the payroll were to be considered drivers,121 and also had a
majority among the combined group of 17 drivers and dockmen, including the two
part-time employees.
Although Reed's March 17 letter mentioned only the drivers, by the time of
Thurston 's March 29 letter the petition made it clear that the Union was not seek-
ing a limited unit but claimed to represent all Nashville terminal employees engaged
in driving and dockwork While Thurston's letter of October 29 challenged the
appropriateness of the unit set forth in the letter , its failure to mention the unit
described in the petition makes clear that its challenge was technical and did not
reflect candid concern over the scope of the unit of the Teamsters claimed to repre-
sent. I find that the request tor recognition set forth is the Teamsters March 17
letter, as clarified by its petition , was sufficient in form as a request for bargaining 122
and constituted a valid request for bargaining in the appropriate unit.123 As
found, Teamsters Local 327 represented a majority in that unit at the time of the
request and of the refusal.
In the light of Respondent's other unfair labor practices, which had begun before
the Teamsters request but intensified almost simultaneously with its receipt and
took more drastic and varied forms, including the discharge of more than a third
of its employees , it is readily concluded that Respondent 's refusal to recognize
Local 327 on March 29 and thereafter was not motivated by a good-faith doubt as
to Local 327's majority status but was "due to a desire to gain time and to take
action to dissipate the union's majority." Joy Silk Mills v. N.L.R.B., 185 F 2d 732,
at 741 (C.AD.C.), enfg. 85 NLRB 1263. Accordingly, I find that on March 29,
1965, and all times thereafter Respondent refused to bargain with Local 327 in
violation of Section 8(a)(5) of the Act.124
120 There is nothing in the record to indicate what circumstances , If any, had come to
Respondent's attention to indicate that a majority did not wish to be represented by the
Teamsters.
1-On March 17, the Teamsters had 9 cards from among the 12 regular driieis and
2 from among the 3 regular dockmen. By March 29 , it had cards from an additional
dockman and an additional driver
112Jas H. Matthews cC Co, 149 \LRI' 161, 167, enfd. 61 LRRM 2070 (CA. 8)
123 Sabine Vending Co ., Inc., 147 NLRB 1010.
124 In view of the evidence set forth in section D, 2, above and my findings with respect
thereto, it Is clear that at the time of Respondent ' s refusal , Respondent was not faced
with rival claims of two unions which precluded it from recognizing either On March 29
TEA had at most two signed authorization cards in its possession , including leadman
Walters' TEA not only lacked a majority on that date but I am satisfied for reasons set
forth above that no claim of majority representation had been made by TEA as of that
date. Finally at no time did TEA have cards from a majority of the employees in the
unit apart from those which were solicited by Walters. See N.L R B. v. Hamilton Plastic
Molding Co ., 312 F .2d 723 ( C A. 6) ; Insular Chemical Corporation and Rubber Corpora-
tion of America, 128 NLRB 93; Conren, Inc., d/ b/a Great Scot dupes market , 156 NLRB
592, 601-602.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of Thurston Motor Lines, Inc., described in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, as
alleged in the complaint, I shall recommend that Respondent be ordered to cease
and desist therefrom and take certain affirmative action.
As I have found that Respondent discriminated against employees Thomas Lar-
kins, Jackie McDole, Thomas Motion, James Screws, Glenn Poss, Davis Robertson,
and Larry Storey by discharging them on the various dates set forth above, I shall
recommend that Respondent be ordered to offer them immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudice to their
seniority and other rights and privileges and to make them whole for any loss of
earnings they may have suffered by reason of the discrimination against them, by
payment to them of the sum of money equal to the amount they normally would
have earned as wages from the dates of their discharges to the date of the offers of
reinstatement, less their net earnings, to which shall be added interest at the rate of
6 percent per annum, in accordance with the formula set forth in F. W. Woolworth
Co., 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716.
Moreover, as I have found that Respondent discriminatorily denied employee
Philip Vaughn part-time employment between March 30, and April 9, 1965, I shall
recommend that Respondent be ordered to make him whole for the loss of earnings
he may have suffered by reason of the discrimination against him by payment to
him of the sum of money equal to the amount he would have earned as wages
between those two dates less his net earnings, if any, on the days he would have
worked, to which shall be added interest at the rate of 6 percent per annum as
provided in Isis Plumbing & Heating Co., supra.
As I have found that Respondent engaged in substantial violations of diverse
character, I am of the opinion that there exists a danger of commission of other
and further unfair labor practices and shall recommend that Respondent be ordered
to cease and desist from infringing in any other manner on rights guaranteed by
Section 7 of the Act.
Upon the basis of the above findings of fact and the entire record in this case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent Thurston Motor Lines, Inc., is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Teamsters, Chaffeurs, Helpers and Taxicab Drivers Local Union 327, affili-
ated with International Brotherhood of Teamsters, Chaffeurs, Warehousemen and
Helpers of America, and Transportation Employees Association (Independent),
Local 101, are labor organizations within the meaning of Section 2(5) of the Act.
3. All truckdrivers and warehousemen employed at Respondent's Nashville,
Tennessee, terminal, excluding office clerical employees, mechanics, salesmen,
guards, and supervisors as defined in the Act constitute an appropriate unit for the
purpose of collective bargaining within the meaning of Section 9(b) of the Act.
4. At all times since March 17, 1965, Local 327 has been, and now is, the exclu-
sive representative of the employees in the said unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By coercively interrogating its employees, threatening employees with reprisal
as a consequence of their union activities, threatening to hire employees on the basis
of antiunion sympathies, creating an impression of surveillance of union activities,
and requesting employees to report on the union sympathies of other employees so
as to interfere with, restrain, and coerce its employees in the exercise of rights
guaranteed them by Section 7 of the Act; by rendering unlawful aid, assistance,
and support to Transportation Employees Association (Independent), Local 101;
by changing the employment status of employees so as to induce them to forgo
union membership and activity; by discriminating in regard to the hire and tenure
of employment of employees thereby discouraging their membership in Local 327;
and by refusing to bargain collectively with Local 327 as the exclusive representa-
THURSTON MOTOR LINES, INC. 1311
tive of its employees in the appropriate unit above, all as found above, the Respond-
ent has engaged in and is engaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1), (2), (3), and (5), and Section 2(6) and
(7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
pursuant to Section 10(c) of the Act, I hereby recommend that Thurston Motor
Lines, Inc., Nashville, Tennessee, its officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating its employees concerning their own membership,
activities, and desires or those of other employees.
(b) Threatening employees with discharge, terminal shutdown, refusal to sign a
contract, withholding of future raises, or any other reprisals for engaging in union
activities.
(c) Requesting employees to report to Respondent' s managers or supervisors
with respect to the union sympathies or activities of other employees.
(d) Threatening to hire employees on the basis of antiunion sympathies.
(e) Creating an impression of surveillance of union activities.
(f) Assisting Transportation Employees Association (Independent), Local 101,
by the participation of its supervisors in urging and soliciting its employees to sup-
port, to sign authorization cards for, or to join said organization, or by unlawful
deduction of dues from wages.
(g) Changing the employment stauts of its employees by granting them full-time
employment or changing job duties so as to induce them to forgo union member-
ship or activities.
(h) Discouraging union membership in Teamsters, Chauffeurs, Helpers and
Taxicab Drivers Local Union 327, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America by discriminating
against employees in regard to the hire and tenure of employment or any term or
condition of employment.
(t) Refusing to bargain collectively in good faith concerning rates of pay, hours
of employment, and other terms and conditions of employment with Teamsters,
Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America as the exclusive representative of the employees in the appropriate unit
described in paragraph 3 of the section of this Decision entitled "Conclusions of
Law."
(j) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their rights to self-organization, to form labor organizations, to
loin or assist Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327,
affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in any other concerted
activities for the purposes of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act-
(a) Offer Thomas Larkins, Jackie McDole, Thomas Motion, James Screws, Glenn
Poss, Davis Robertson, and Larry Storey immediate and full reinstatement to their
former or substantially equivalent positions without prejudice to their seniority or
other rights and privileges previously enjoyed and make the above-named employees
and Philip Vaughn whole for any loss they may have suffered by reason of the dis-
crimination against them in the manner set forth in the section of this above Deci-
sion entitled "The Remedy."
(b) Notify the above-named employees if presently serving in the Armed Forces
of the United States of their right, to full reinstatement upon application in accord-
ance with the Selective Service Act and the Universal Military Training and Serv-
ice Act, as amended , after discharge from the Armed Forces.
(c) Reimburse all employees for any union membership dues unlawfully exacted
by deduction from wages, together with interest at the rate of 6 percent per annum.
(d) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay under the terms of this Decision.
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Upon request, bargain collectively with the above-named Union as the exclu-
sive representative of all employees in the appropriate unit, and embody in a signed
agreement any understanding reached.
(f) Post at its Nashville, Tennessee, place of business copies of the attached
notice marked "Appendix." 125 Copies of said notice to be furnished by the Regional
Director for Region 26, shall, after being duly signed by Respondent's representa-
tive, be posted by it immediately upon receipt thereof and be maintained by it for
at least 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not altered, defaced, or covered by
any other material.
(g) Notify said Regional Director, in writing, within 20 days from the receipt of
this Decision, what steps Respondent has taken to comply herewith.126
12i In the event that this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board 's Order is enforced
by a decree of a United States Court of Appeals, the words "the Decree of the United
States Court of Appeals , Enforcing an Order " shall be substituted for the words "a Decision
and Order."
In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director , in writing , within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL offer to Thomas Larkins, Jackie McDole, Thomas Mohon, James
Screws, Glenn Poss, Davis Robertson , and Larry Storey immediate and full
reinstatement to their former or substantially equivalent positions without prej-
udice to their seniority or other rights and privileges , and we will make the
above-named employees and Philip Vaughn whole for any loss they may have
suffered as a result of discrimination against them.
WE WILL bargain collectively, upon request, with Teamsters, Chauffeurs,
Helpers and Taxicab Drivers Local Union 327, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
as the exclusive representative of all the employees in the bargaining unit
described below with respect to 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 bargaining unit is:
All truckdrivers and warehousemen employed at the Nashville, Tennessee,
terminal , excluding office clerical employees, mechanics, guards, and super-
visors as defined in the Act.
WE WILL NOT coercively interrogate our employees concerning their union
membership, activities, or desires.
WE WILL NOT threaten our employees with discharge, terminal shutdown,
refusal to sign a contract, withholding of raises, or any other reprisal for engag-
ing in union activities.
WE WILL NOT threaten to hire employees on the basis of antiunion sym-
pathies.
WE WILL NOT create impression that we are engaged in surveillance of
employee union activities.
WE WILL NOT request our employees to report to our managers or super-
visors with respect to the union sympathies or activities of other employees.
WE WILL reimburse all employees for any union membership dues unlaw-
fully exacted by deduction from wages, together with interest at the rate of 6
percent per annum.
WE WILL NOT assist Transportation Employees Association (Independent),
Local 101, by the participation of our supervisors in urging and soliciting
employees to support, sign authorization cards for , or join said organization,
or by unlawful deduction of dues from wages.
INT'L BROTHERHOOD OF TEAMSTERS, LOCAL 377 1313
WE WILL NOT change the employment status of employees by granting them
full-time employment or changing their job duties so as to induce them to forgo
union membership or activities.
WE WILL NOT discourage membership in Teamsters, Chauffeurs, Helpers
and Taxicab Drivers Local Union 327, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and helpers of America, or any
other labor organization by discriminatorily discharging or laying off any of our
employees.
WE WILL NOT refuse to bargain collectively with Teamsters, Chauffeurs,
Helpers and Taxicab Drivers Local Union 327, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
as the exclusive representative of all the employees in the bargaining unit
described above.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization, to form labor
organizations, to join or assist Teamsters, Chauffeurs, Helpers and Taxicab
Drivers Local Union 327, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, or any other labor
organization, to bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to refrain from any and all
such activities.
THURSTON MOTOR LINES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Tele-
phone 534-3161.
International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America , Local Union No . 377 and All-
American Stamp and Premium Corporation of New York,
Charging Party
International Brotherhood of Teamsters, Chauffeurs , Warehouse-
men and Helpers of America, Local Union No. 377 and Hath-
away Bakeries Division , Seaboard Allied Milling Corporation,
Charging Party
International Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America, Local Union No. 377, and Ralph
Lucente and National Tea Company, Charging Party. Cases
8-CC-230,239, 231, and 258. June 24,1966
DECISION AND ORDER
On April 14, 1966, Trial Examiner George L. Powell issued his
Decision in the above-entitled proceeding, finding that respondents
159 NLRB No. 86.
243-084-67-vol . 159-84