Thurston Motor Lines, Inc.

National Labor Relations Board - Board Decisions

Nov 27, 1967

168 N.L.R.B. 428 (N.L.R.B. 1967)

428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thurston Motor Lines, Inc. and Teamsters Freight
Local No. 480, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America
Thurston Motor Lines , Inc. and Teamsters , Chauf-
feurs, Helpers and Taxicab Drivers Local Union
327, affiliated with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Hel-
pers of America. Cases 26-CA-2527 and -2 and
26-CA-2078, -2, -3, -4, -5, 26-CA-2118,
26-CA-2133, and 26-CA-2157
November 27, 1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On June 6, 1967, Trial Examiner George J. Bott
issued his Decision in the above-entitled proceed-
ing,' finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist there-
from and take certain affirmative action, as set forth
in the attached Trial Examiner's Decision. He fur-
ther found that Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that such allegations
be dismissed. In the backpay proceeding, the Trial
Examiner, in accordance with the parties' stipula-
tion, recommended that Respondent be ordered to
pay certain amounts of backpay to five named em-
ployees. Contrary to the contentions of Respond-
ent, he recommended that the Board order it to
again offer reinstatement to an employee whom it
had unlawfully discharged. Thereafter, Respondent
filed exceptions and the General Counsel filed
cross-exceptions to the Trial Examiner's Decision,
and the General Counsel filed a brief in support of
his cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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, the
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following
modification:
The Trial Examiner found that Respondent vio-
lated Section 8(a)(1), (3), and (4) of the Act by
discharging employee Phillip Vaughn for his union
sympathies and the testimony he gave in a previous
case involving the same parties.'' We do not agree
with this finding of the Trial Examiner.
Respondent is an interstate carrier of motor
freight. Phillip Vaughn began to work as a part-time
employee at its Nashville terminal in February
1965. In April, Vaughn became a regular tractor
driver, replacing Thomas Larkins who, we sub-
sequently found, had been unlawfully discharged.3
On August 26, 1966, 1 year after he had testified in
the case referred to above, Vaughn was laid off. His
layoff came during the period when Respondent
was offering reinstatement to Larkins and several
other of Respondent's discriminatorily discharged
employees.
At the hearing in this case, Vaughn testified
without contradiction that, at the time of his layoff,
Respondent's Terminal Manager Martin told him
of Larkins' forthcoming reinstatement, that the
work force would have to be reduced, and that
Vaughn would have to be laid off because he had
filled Larkins' position. After his layoff, Respond-
ent.contacted Vaughn several times, informed him
that he was first on the extra driver list, and
requested that he report to work. Vaughn refused
the requests.
In finding that Vaughn had been discriminatorily
laid off, the Trial Examiner stressed Respondent's
failure to check the relative seniority among its em-
ployees with a view to offering Vaughn a job in
another classification or of transferring him else-
where. He noted that, Respondent did not attempt
to retain Vaughn after three drivers either refused
to accept reinstatement or quit their jobs shortly
after being returned to them.
In our view of the record, the factors relied upon
by the Trial Examiner do not support the inference
he drew, namely, that because Respondent failed to
explore the alternatives outlined in the preceding
paragraph it had acted on the basis of a continuing
animus against Vaughn, discharging him for his
union sympathies and the testimony he had
proffered in the earlier case.
In determining who shall be laid off, Respondent's
practice has been that employees in one classifica-
tion do not displace employees in another classifica-
tion. Its policy is not to bump "down the line or up
the line." All job changes which require some loss
of employment are confined to the classification in-
volved. Thus, when Larkins returned to work the
only classification to be affected under Respond-
ent's practice was that of tractor driver. Since
Two separate matters were consolidated for hearing The first,
26-CA-2527 and -2, is an unfair labor practice case in which Respondent
is alleged to have violated certain sections of the National Labor Rela-
tions Act, as amended The second, 26-CA-2078, et al , is a backpay
specification in which Respondent is also alleged to have failed uncondi-
tionally to offer reinstatement to two employees who the Board found had
been unlawfully discharged
Thurston Motor Lutes, Inc , 159 NLRB 1265
/bid In the same case we also found violations of the Act in
Respondent's failure to call Vaughn for available part-time -work and in its
promotion of him to full-time employee status
168 NLRB No. 62
THURSTON MOTOR LINES 429
Vaughn had replaced Larkins when the latter was
unlawfully discharged , Respondent decided to
reverse the process when Larkins , and other em-
ployees in the same position , were to be reinstated.
Therefore , Larkins replaced Vaughn , the man who
had replaced him. Yet , having made this choice,
Respondent did not discharge Vaughn . Instead, it
placed him at the head of the extra list, summoned
him to the terminal several times , for jobs, and told
him that there was plenty of work available.
Vaughn ignored the offers.
Furthermore , the record does not justify the Trial
Examiner ' s reliance upon Respondent ' s failure to
consider Vaughn for the positions supposedly
opened up by the decision of three discharged
drivers not to resume their employment with the
Respondent . Their choice did not create three
additional driver positions . It merely allowed the
present occupants to continue working without
fear of replacement by those who were returning
to their jobs pursuant to the Board ' s Order in the
earlier case.
In view of Respondent ' s adherence to a policy
governing layoff which precluded bumping, its
reasonable decision, in the face of a Board Order,
to replace Vaughn with the same driver whom
Vaughn had previously replaced , and its frequent
offers of extra work to Vaughn after he was laid off,
we find that the General Counsel has not proved by
a preponderance of the evidence that Respondent
had discriminatorily discharged Vaughn. Ac-
cordingly, we shall dismiss the complaint in Case
26-CA-2527 and-2.
In view of our adoption of the Trial Examiner's
recommendations in the backpay case , and his inad-
vertent failure to include a recommendation relating
thereto , we hereby include such in an order herein.
plaint in Case 26-CA-2527 and-2 be, and it hereby
is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE PROCEEDINGS
GEORGE J. BOTT, Trial Examiner: This consolidated
proceeding based on a backpay specification issued by
the Regional Director on January 7, 1967, and a com-
plaint of unfair labor practices under Section 8(a)(1), (3),
and (4) of the National Labor Relations Act, as amended,
issued by the Regional Director on October 14, 1966,
pursuant to charges filed on August 24 and September 6,
1966, was heard in Nashville, Tennessee, on March 7,
1967. Subsequent to the hearing, General Counsel filed
a brief which I have considered.
On the basis of the entire record in the case and from
my observation of the witnesses, I make the following
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS; THE LABOR
ORGANIZATIONS INVOLVED
I find on the basis of the facts alleged in the complaint
and admitted in the Respondent's answer, and on the
basis of the Board's findings in the earlier case upon
which the Regional Director's backpay specifications are
based, that Respondent Thurston Motor Lines, Inc., a
North Carolina corporation with its principal office and
place of business at Charlotte, North Carolina, and ter-
minals in Nashville, Tennessee, and other locations in
Tennessee and other States, where it is engaged in the in-
terstate transportation of motor freight, is engaged in
commerce within the meaning of Section 2(6) of the Act.
Teamsters, Chauffeurs, Helpers and Taxicab Drivers
Local Union 327 and Teamsters Freight Local No. 480,
of International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, are labor or-
ganizations within the meaning of Section 2(5) of the Act.
ORDER -
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Thurston Motor Lines, Inc., Nashville, Tennessee,
its officers, agents, successors, and assigns, shall
take the action set forth below:
1. Pay, as net backpay to the employees named
below, the amounts specified opposite their names,
Glenn Poss $235
Jackie McDole 128
Davis Robertson 53
James Screws 407
Phillip Vaughn 76
2. Offer Glenn Poss immediate and full rein-
statement to his former or substantially equivalent
position without prejudice to his seniority or other
rights and privileges previously enjoyed, according
to the formula prescribed by the Trial Examiner in
the section of his Decision entitled, "The Remedy,"
for employee Phillip Vaughn.
IT IS HEREBY FURTHER ORDERED that the com-
Il. THE BACKPAY SPECIFICATION
A The Bac%pay Issues
The Board, on June 24, 1966, issued a Decision and
Order directing Respondent to offer Thomas Larkins,
Jackie McDole, Thomas Mohon, James Screws, Glenn
Poss, Davis Robertson, and Larry Storey immediate and
full reinstatement to their former positions and to make
them and Phillip Vaughn whole for any losses they suf-
fered as a result of the discrimination against them.' At
the hearing on the backpay specification, the parties were
in agreement on certain matters, but Respondent disputed
the accuracy of the amounts claimed due some of the em-
ployees. It was agreed, however, that the record would be
left open in order that the parties might seek agreement
on basic facts and stipulate the amounts actually due. On
March 31 and April 3, 1967, the General Counsel, the
Respondent, and the Union executed separate but identi-
cal stipulations disposing of the backpay features of the
case and providing that I make findings based thereon.2
I Thurston Motor Lines , Inc , 159 N LRB 1265
' These documents have been marked as T X Exh la, b, and c, and
made a part of the record
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have approved the stipulation and, on the basis of it, I
find as follows:
In accord with the terms of the stipulation certain
amounts are due employees, and I recommend that the
Board order Respondent to pay the below-named dis-
criminatees, as their total backpay, the amount set op-
posite his name with interest thereon until paid.
Name Amount
Glenn Poss $235
Jackie McDole 128
Davis Robertson 53*
James Screws 407
Phillip Vaughn 76
8 Except as noted below.
Also in accord with the stipulation, I recommend that,
when the next allocations are made to any employees' ac-
counts pursuant to Respondent's profit-sharing plan, allo-
cations be made of the total amount due to Davis Robert-
son pursuant to said plan; that Respondent notify the Re-
gional Director of Region 26 of the Board of the amount
due Davis Robertson; that if said Director considers the
stated amount to be incorrect, he be permitted to institute
such supplemental proceedings as he may consider ap-
propriate. However, if said Director approves the compu-
tations of the amount due Davis Robertson, I recommend
that Respondent make him whole by payment to him of
the amount allocated pursuant to the plan 3
B. The Alleged Failure to Reinstate Glenn Poss and
Thomas Larkins as Provided in the Board's Order
1. The facts
Truckdrivers Poss and Larkins were discharged in
April 1965 and were ordered reinstated by the Board on
June 11, 1966. Respondent reinstated Poss on August 11
and Larkins on August 16, 1966, and apparently they
worked at their old jobs without incident until August 22,
when Nashville Terminal Manager Martin handed each
a letter which read:
Nashville, August 22, 1966
A. Glenn Poss
Nashville Terminal
When you responded affirmatively to our offer to
reinstate you to your former job here, we assumed
that you did so in good faith. Consequently, we
proceeded with plans to terminate another employee
to make room for you in your old job.
However, just as we were on the verge of carrying
out such plans, we learned that you had not accepted
reinstatement here in good faith. Proof has been
furnished to us that you, like several others, have
come here while on temporary leave from other em-
ployment where you have retained fully your job
status.
We have a substantial investment in the training of
the employee who was slated for discharge on ac-
count of your returning here. This employee also has
some rights in the matter. You knew, of course, that
your returning to work would cause such an em-
ployee to lose his job.
We do not believe that the law either authorized such
misconduct on your part or requires that we tolerate
it. It is absolutely essential that you immediately
make a choice between our Company and your
present employer- the Company from which you are
now on leave-of-absence. If you do not now resign
from the employment referred to above and sever all
relations with that employer, we must assume that
you intend to return to that job at or before the ex-
piration of your temporary leave, and we will act ac-
cordingly.
/S/ WILLIAM L. MARTIN
WILLIAM L. MARTIN
TERMINAL MANAGER
Poss and Larkins worked for other employers in the in-
dustry after Respondent discharged them in 1965, and
when Respondent offered them reinstatement in August
1966 Poss was employed by Ryder Truck Lines and Lar-
kins by Southern Forwarding Freight Lines. What
Respondent was referring to in its August 22 letter to the
employees where it stated that they had not accepted
reinstatement "in good faith," but had returned to
Respondent "while on temporary leave from other em-
ployment" where they had retained "job status," was the
fact that each of the men had obtained, on August 9,
1966, a written leave of absence for 30 days from their
respective interim employers.
When Martin gave Larkins his letter he stated that he
had to know whether Larkins intended to remain with
Respondent or return to Southern Forwarding. Larkins
told him that he had "come back to stay" and would
resign from his last employer Southern's terminal
manager, Gray, was-then reached by telephone, and Lar-
kins spoke with him in Martin's presence and told him he
would resign. Martin then instructed Larkins to send a
written resignation to Gray, with copies to Martin and the
Union, which Larkins did.
Larkins was a regular driver at Southern Forwarding
before he resigned. He obtained the 30-day leave of
absence when Respondent offered him reinstatement, ac-
cording to him, and I credit his testimony, because he
wanted to be certain when he went back with Respondent
that "everything would be all right, so that if something
happened I could have a job to go back to. I had made up
my mind to stay at Thurston but I didn't know what
would happen."
After Martin read the August 22 letter to Poss he in-
formed him that because he was holding two jobs simul-
taneously he had to relinquish one of them. Poss told him
that he did not intend to resign from Respondent because
that was where he wanted to work and he had taken a
leave of absence from his last employer for "security"
only. Martin told Poss to "hit the clock," and he did. His
separation slip reads: "Employee rejected full reinstate-
I Paragraph 31 of the backpay specification claimed reimbursement for
certain dues deductions, but General Counsel stated at the hearing that
this matter was no longer before me because the Respondent had for-
warded checks covering the amounts due to the Regional Director
THURSTON MOTOR LINES 431
ment to former Job as offered by company."
In his testimony, Poss amplified his reference to
"security" being the basis for his 30-day leave of absence
from Ryder. He said he had been "previously dismissed
by Thurston Motor Lines which was proven by the Na-
tional Labor Relations Board that they had discriminated
against me, that they had dismissed me illegally and I had
worked [the] extra board and worked myself up from
that status with another company and was on regular at
that time, and I felt it would be foolish to go back
although I wanted to go back for different reasons."
These reasons, he explained further, were that he was on
the night shift at Ryder but worked days at Respondent,
and, in addition, at Ryder he worked on the dock, but he
would be driving a truck for Respondent. He reiterated
that he asked for a leave of absence from Ryder "purely
on the basis of security in case that I was dismissed and
I [would] have a job that I could go back to "
D. J. Thurston, Respondent's president, testified that
after Respondent offered reinstatement to the dis-
criminatees, he began to "question the motives" of the
employees because some of them "did not show up at all"
or have the "courtesy to say they weren't coming." In ad-
dition, McDole and Robertson worked only a day or so
after reinstatement and then quit. When Larkins returned,
Thurston learned from his previous employer that he had
been granted a leave of absence, and he also discovered
just before another Board hearing on August 17, 1966,
that Poss had a 30-day leave of absence from Ryder 4
Thurston secured copies of Larkins' and Poss' leaves of
absence and, based upon these documents and his ex-
perience with the other reinstated employees, he caused
the letters to be written to Poss and Larkins in which they
were required to elect where they wanted to work
because, as he said,
... it was our feeling, before we threw some other
men out and replaced other men with these men, we
should have some reasonable indication of sincerity
and honesty of the purpose and intent on their part.
Thurston said his position was accurately stated in the
letters which Terminal Manager Martin gave to Larkins
and Poss. He added that the Company also has a rule
against "moonlighting" and that an employee had been
discharged for holding two jobs. Thurston maintained
that "no limitation or restriction of any kind" was placed
on Larkins or Poss when they were reinstated. Larkins is
still working for Respondent and Thurston said that after
Poss refused "to accept the terms" stipulated in Re-
spondent's letter, Respondent informed the Board that it
would take him back to work if he would.
2. Analysis and conclusions
The backpay specification alleges that Respondent
failed to reinstate Poss and Larkins as provided by the
Board's Order because it required them as a condition of
employment or reinstatement to give up the "seniority
rights and other benefits" acquired by them during their
employment with another employer. The letters which
Respondent gave Poss and Larkins on August 22, 1966,
speak for themselves, and Thurston, Respondent's pre-
sident, said they accurately expressed his views. Accord-
ing to the letters, Poss and Larkins had accepted rein-
statement while on temporary leave from other employ-
ment where they had fully retained "job status." In
Respondent's view, such actions were not in "good faith"
but constituted "misconduct" which Respondent would
not tolerate. Respondent required the employees to "im-
mediately make a choice between our Company and your
present employer" or Respondent would "act ac-
cordingly " How Respondent would act was made clear
when Poss was told to "hit the clock" when he refused to
resign from Ryder Truck Lines immediately. It is clear,
therefore, and I find that Respondent conditioned con-
tinued employment of the employees on their immediate
resignations from the employers who had granted them a
30-day leave of absence and on their "severing all rela-
tions with [those] employers."
Certain principles relating to the Board's power to
order reinstatement of employees with backpay where in
the Board's judgment this remedy "will effectuate the pol-
icies of [the] Act"5 have been long established. The pur-
pose of reinstatement is the "restoration of the situation,
as nearly as possible, to that which would have obtained
but for the illegal discrimination. `6 An offer of reinstate-
ment to the victim of discrimination has been described
as "the only sanction which prevents an employer from
benefiting from his unfair labor practices through
discharges which may weaken or destroy a union ..."7
and "is not only the final achievement of the Act's protec-
tion in respect to [the discharged] employee but it is the
most realistic and articulate demonstration of the Act's
paramount protection to other employees."8
The achievement of these important objectives
requires that the employer's offer be "immediate and
full,"9 and it is only when it is "not possible to restore the
absolute status quo" that something less is permitted.10 I n
accord with these rules it has been said that the em-
ployer's offer of reinstatement must be unequivocal, un-
conditional, and in good faith in order to be valid and the
kind of offer the Act contemplates. I i
In rare and exceptional circumstances the Board may
permit an employer to impose a condition on an em-
ployee's reinstatement. Thus, in Marshall Maintenance
Corp., 145 NLRB 538, the Board thought it reasonable
for an employer to require employees who had gone into
a competing business after their discharges to divest
themselves of their interest in that enterprise. But merely
because prompt, unconditional, and full reinstatement
would work some hardship on an employer is not suffi-
' Poss testified in Thurston Motors, Inc , Cases 26-CA-2353 and
26-CA-2353-2 [166 NLRB 862], which involved the alleged dis-
criminatory discharges of employees Jackson and Capps
Section I0(c) of the Act
Phelps Dod;'eCorp , 313 U S 177, 194
v Local 833, International Union, UAW [Kohler Co ] v N L R.B , 300
F 2d 699, 703 (C A D C )
Burnup andSims, Inc, 157 NLRB 336
Such is what the Board ordered in the principal case and it is in the
"standard form, which has long been in use by the Board " See N L R B
v Diaper Corporation, 159 F 2d 294, 297 (C A 1)
"' The Chase National Bank of the City of New York, San Juan, Puerto
Rico, Branch, 65 N LRB 827, 829
" See White Sulphur Springs Co v N L R B , 316 F 2d 410, 414
(C A D C ), Lakeland Bus Lines, Inc v N L R B , 278 F 2d 888, 892
(C A 5), Harvey Carlton, d/bla Cello-Tak Company, 143 NLRB 295,
304 The Ready-Mix Concrete Company of Lawrence, Kansas, 142
NLRB 502, Borg-Warner Controls, 128 NLRB 1035, 1044 Employee
offers to return to work after a stake must also be "unconditional" to
serve as a basis for a backpay order See J A Terteling & Sons, Inc dlbla
Western Equipment Company, 152 NLRB 1014, where an offer to return
to work "under the terms and conditions of employment existing at the
time the strike began" was considered unconditional
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cient reason for excusing the offer, and the confusion or
other difficulties the employer must bear in fully comply-
ing with the Board 's order have been described as merely
byproducts of the unfair labor practices which he has
committed. 12
Considered in the light of these well-established rules,
the facts in this case compel the conclusion that Larkins
and Poss did not receive full and unconditional reinstate-
ment within the meaning of the cases and that, as one
court succinctly stated it , the "type of ` reinstatement'
[they] got was not what [they were] entitled to." 13
Respondent has not restored the status quo ante as nearly
as possible because before these employees were illegally
discharged Respondent made no inquiry of them about
how long they intended to stay with Respondent and they
had the right to quit their employment at a moment's
notice. By requiring Larkins and Poss to decide im-
mediately whether to discard whatever tenure or security
they had at their interim employers , Respondent imposed
on them a condition of employment which did not exist
when they worked for Respondent before and which
would never have become an issue but for Respondent's
violation of law. 14
A relevant factor in judging the respective rights of the
employer and employees in this case is that it was the em-
ployer whose good faith was originally put in issue when
he discharged these employees and, that issue having
been resolved against him, upon whom reinstatement was
imposed as a sanction to prevent him from benefiting
from his unfair labor practices. 15 So viewed , the Com-
pany's protestation that the innocent victims of its dis-
crimination did not accept reinstatement in "good faith"
but had engaged in some form of "misconduct " by return-
ing to work while on leave of absence from their interim
employers is not particularly appealing on its face. 16 The
charge is particularly unpersuasive when the explanations
of the parties for their respective actions are weighed.
Larkins and Poss testified credibly that they had mixed
feelings about returning to Respondent because they re-
called the earlier discrimination against them . They both
felt that they needed a 30-day period in order to test the
situation and to have the "security" of ajob to go back to
"if anything happened " and they were discriminated
against again . Their feelings that the interim jobs they had
in hand might be worth more than Respondent 's promise
of an "immediate and full " restoration of them to their
former states were not unreasonable or unrealistic.
Respondent , on the other hand , defended its insistence on
Larkins' and Poss' immediate severance of all connec-
tions with their interim employers on the ground that, in
order to make room for them , it must terminate another
employee in whom it had a "substantial investment" and
who had some "rights in the matter" himself, but, as has
been held in many cases , '7 these are not circumstances
which justify Respondent reinstating Larkins and Poss
conditionally , for Respondent would not have had a sub-
11 N L R B v Trinity Valley Iron and Steel Company, 290 F 2d 47,48
(C A 5) See also N L R B v Quest-Shon Mark Bras siere Co, Inc , 185
F 2d 285, 290 (C A 2), N L R B v Remington Rand, Inc 94 F 2d 862,
871 (C A 2), cert denied 304 U S 576
Lakeland Bus Lines, Inc v N L R B 278 F 2d 888, 891 (C A 3)
In Marshall Maintenance Corp , supra , the Board permitted the dis-
crimmatees a "reasonable time" to comply with a condition it allowed the
employer to place on their reinstatement
15 Local 833,UAW, siipra,fn 7
11, And even if the employees had taken reinstatement only for the pur-
pose of showing other employees that they had been reinstated and their
stantial investment in replacements if it had not
discharged these employees in the first place.'"
I conclude that by requiring Larkins and Poss as a con-
dition of continued employment to resign from and "sever
all relations with" the employers who had granted them
a leave of absence , Respondent failed to comply with the
Decision and Order of the Board requiring full and im-
mediate reinstatement to their former positions.
Poss refused to resign from Ryder Truck Lines and
was immediately discharged as a result . I recommend,
therefore , that the Board order Respondent to make him
an offer of full and immediate reinstatement to his former
or substantially equivalent position as provided in the
Board 's original Order , including the customary backpay
provisions.
Larkins resigned from the employer he had been work-
ing for when Respondent required him to, and he was still
employed by Respondent at the time of the hearing in this
case. General Counsel argues that although Larkins has
already waived his right of seniority at Southern For-
warding, it is impossible to know what his decision would
have been if he had been permitted to decide for himself
whether to return to work there and therefore there
should be some remedy for him. General Counsel sug-
gests that the remedy should be an order that in the event
Larkins is terminated in the future by Respondent,
Respondent should make him whole for whatever
earnings he would have had at Southern Forwarding if he
had not been required to give up his seniority there. I am
not completely certain about the nature of the remedy
General Counsel is requesting in Larkins' case but the
core of it seems to be to treat him as he would have been
treated if he had gone back to Southern Forwarding or
had not given up his leave of absence there. I am not con-
vinced that there is a practical remedy in Larkins' case,
however, particularly since his leave of absence was only
for 30 days and there is no evidence that Southern For-
warding would have renewed it. It is unlikely that Larkins
would have been carried in a leave status at Southern in-
definitely and we would not be able to use his theoretical
continued tenure at that company as any kind of a reliable
indicator of his losses if he were laid off at some uncertain
time in the future by Respondent . Any financial losses
that Larkins may suffer by reason of Respondent's ac-
tions in his case are too uncertain , speculative , and too
difficult to compute to make a remedy in this area effec-
tive. These factors, plus the uncertainty caused by the
lack of a suggested time limit on Respondent 's potential
liability, lead me to conclude that no financial remedy
should be recommended in Larkins' case.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Discrimination against Poss and Larkins
The complaint alleged that by requiring Larkins and
statutory rights vindicated , this would not excuse Respondent ' s imposi-
tion of a condition on their return See Local 833 , supra , fn 7, Burnup and
Sims, Inc , supra, fn 8
11 Cases cited fn 12, supra
"Respondent does not seriously rely on its rule against "moon-
lighting ," as suggested in Thurston 's testimony , as a reason for requiring
Larkins and Poss to "elect " between employers , and, in any case , the rule
is irrelevant because these employees were not actually working at two
jobs (moonlighting), but reserving for a temporary period only a right to
return to anotherjob
THURSTON MOTOR LINES
Poss to surrender their seniority rights at other employers
(resign from those employers who had granted them a 30-
day leave of absence ) as a condition of employment, and
by discharging Poss, Respondent violated Section 8(a)(1),
(3), and (4) of the Act. Whether Respondent 's imposition
of an improper condition on Larkins ' and Poss' reinstate-
ment was a display of continuing animus, done in the
hope that the employees would turn down the offers and
Respondent would be rid of them ,' 9 "inextricably inter-
twined with and derived from [their] original filing of
charges against the Respondent and . . . giving of
testimony in support thereof ,' '20 and additional act of dis-
crimination to discourage membership in a labor or-
ganization , a per se violation of employee rights guaran-
teed in Section 8(a)(1) without regard to Respondent's
motive,21 a violation of Section 8(a)(3) because of the
"nature of the conduct"22 itself or just a continuation of
the original unfair labor practices are interesting but not
easy questions which I find it unnecessary to decide
because it will not add anything to the remedy I have
recommended to the Board in the backpay case. I have
found that no workable remedy may be devised in Lar-
kins' case, but that Poss should be given a new offer of
reinstatement made without conditions and made whole
for any losses suffered by reasons of his second
discharge . Respondent has previously been found to have
violated the Act in regard to these very employees and
others, and has been ordered to post appropriate 23
notices Another cease -and-desist order relating to the
same individuals seems redundant.24
B. The Discharge of Phillip Vaughn
Phillip Vaughn was hired by Respondent as a part-time
employee in February 1965. Vaughn testified in the prin-
cipal case, which also involved Larkins, Poss, and others,
and the Board found that he, too, had been discriminated
against because ". . . Respondent failed to call him to
available part -time work between March 30 and April 9 in
order to discourage sympathy and support for the Team-
sters." In addition , the Board found that Respondent sub-
sequently elevated Vaughn to full -time status because he
had expressed views against the Teamsters and in order
"to interfere with the efforts of the employees to gain
representation by the Teamsters ."25 It also appears from
the findings in the earlier cases that Vaughn , after he
acquiesced in certain antiunion conditions suggested to
him by his supervisor , was ". . . almost immediately made
a regular employee when openings occurred because of
the discharges of Larkins , McDole and Mohon."
The complaint in the instant unfair labor practice case
alleges that Respondent discharged Vaughn on August
26, 1966, in violation of Section 8(a)(1), (3), and (4) of the
Act. Vaughn was working regularly as a city tractor
driver when he was laid off on August 26 , 1966, which
was during the period when Respondent was offering
reinstatement to the drivers whom the Board had found
it had illegally discharged in April 1965. He testified
without contradiction that Martin , the terminal manager,
told him that Thomas Larkins was being reinstated, that
Respondent would have to reduce the force because it
'" Federal Dairy Company , inc , 142 NLRB I33•
20 Lakeland Bus Lines, incorporated , 124 NLRB 123, 124
Exchange Parts Company, 375 U S 405, The Radio Officers' Union
of the Commercial Telegraphers Union [A H Bull Steamship Co ] v
NLRB ,347US 17,44
21 N L R B v Erie ResistorCorp , 373 U S 221,227
433
would have too many drivers and since Vaughn "was the
last man put on regular as a tractor driver" he would have
to go. Vaughn inquired about "the men who had been
hired" after him, and asked if "seniority " meant anything.
Martin said it did , but added that he still had to get rid of
a driver to make room for the discriminatees.
I find, in accord with Vaughn ' s uncontradicted
testimony , that when he was discharged Respondent had
in its employ at the Nashville terminal , six dockmen, two
city pickup drivers and two tractor-trailer drivers who
had less service with Respondent than he , but that, as he
conceded, one of the tractor -trailer drivers, Jerry Cripps,
was made a regular driver before he was.
Vaughn was aware that he had been made a regular
driver "immediately" after Larkins was fired and that
Respondent had hired additional help to replace the other
men discharged around the same time Vaughn also said
that, after he was laid off, Martin telephoned him and of-
fered him work as an extra driver. He turned the offer
down and asked for his old job, but Martin refused it.
Respondent ' s position , as explained by Thurston, is
that when it decided to comply with the Board's Order to
reinstate the drivers it had fired , it had to replace Vaughn
because it would have had five more drivers than it
needed . In reinstating the discriminatees it tried to return
them to the jobs they had held before they were fired,
"the same run even , as nearly as we could," and "the man
who had taken their place was the man that would go "
Since Vaughn had taken Larkins ' place, he was removed,
and he was not offered another job in another classifica-
tion because Respondent has no policy of "bumping ...
down the line or up the line. . .
Thurston made the final decision to discharge Vaughn
after talking with Martin , the Nashville manager. He said
he had determined that Vaughn had taken Larkins' place
but he "didn 't check out his seniority."
Respondent ' s asserted reason for selecting Vaughn for
layoff or discharge is unimpressive and I don 't think it is
genuine for a number of reasons . In the first place, it
looks a lot like Respondent 's treatment of Poss and Lar-
kins, described above, for when they accepted Respond-
ent's offers of reinstatement , Respondent gave them an
opportunity to reconsider by insisting that they "im-
mediately" cut their ties with other employers. One of
them did . Vaughn 's elimination, solely on the ground that
Respondent , in effect, had no other choice in complying
with the Board's Order , convinces me that Respondent
was looking for a convenient excuse to get rid of Vaughn
and perhaps discourage the return of other drivers. The
treatment of Vaughn , taken with Respondent 's handling
of Larkins and Poss, indicates that Respondent's com-
pliance, if compliance it was, with the Board ' s Order was
so reluctantly and grudgingly done that it suggests bad
faith.
Not offering Vaughn another job in another classifica-
tion when less senior men were employed is odd enough,
but Respondent did not even check the relative seniority
of others or discuss the possibility of a transfer with
Vaughn , and this is additional evidence that it was not
really looking for a solution to the problem . Moreover,
two drivers in Vaughn's own classification were junior to
21 Based on the violations of Section 8(a)(1), (3), and (4) which I find in
Phillip Vaughn's case , infra , Respondent will also be ordered to post a
new notice relating to those sections of the Act
2' Lakeland Bus Lines v N L R B , supra, 891-892
2` Thurston Motor Lines, Inc , 159 NLRB 1265, section III, G, 2
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him and Thurston never adequately explained why he
didn't consider replacing one of them rather than Vaughn.
Finally, with respect to seniority and job availability, it
should be noted that Respondent had a "substantial in-
vestment" in trained employees, as it told Poss and Lar-
kins in its letters of August 22, but Vaughn had been driv-
ing regularly for over a year when he was fired, yet no ef-
fort was made to keep him, and Respondent never ex-
plained why, when discriminatees Robertson and Mc-
Dole quit shortly after reinstatement, and Poss went back
to Ryder, its investment in Vaughn did not suggest to it
that he might replace one of them.
Vaughn testified on his own behalf in the earlier
proceeding in which the Board found that Respondent
had violated Section 8(a)(1) and (3) of the Act and or-
dered reinstatement of a number of dockmen and
truckdrivers with reimbursement to them and Vaughn for
losses caused by Respondent's discrimination against
them all. I find and conclude, on the basis of the entire
record and for the reasons set out, that Respondent's pur-
ported reason for discharging Vaughn is not the real
reason but that his discharge was part of Respondent's
continuing unfair labor practices motivated in substantial
part by Vaughn' s union sympathies and his testimony in
the earlier case. By such conduct, Respondent violated
Section 8(a)(1), (3), and (4) of the Act.
V. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, it will be recommended that it
cease and desist therefrom and that it take certain affirm-
ative action designed to effectuate the policies of the
Act.
It has been found that the Respondent discriminatorily
discharged Phillip Vaughn. Accordingly, it will be recom-
mended that the Respondent offer him immediate and full
reinstatement to his former or substantially equivalent
position without prejudice to his seniority or other rights
or privileges, and make him whole for any loss of pay suf-
fered by reason of the discrimination by payment to him
a sum of money equal to that which he would have earned
as wages from the date of the discrimination to the date of
reinstatement, less his net earnings during such period in
accordance with the formula prescribed in F. W. Wool-
worth Company, 90 N LRB 289, together with interest on
such sum, such interest to be computed in accordance
with the formula prescribed by the Board in Isis Plumb-
ing & Heating Co., 138 N LRB 716.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the Respond-
ent's operations described in section 1, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) of the Act.
2. By discharging Phillip Vaughn, the Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1), (3), and (4) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]