Trans-States Lines, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1981

256 N.L.R.B. 648 (N.L.R.B. 1981)

648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trans-States Lines, Inc. and International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local Union 373. Case
26-CA-8438
June 17, 1981
DECISION AND ORDER
On March 9, 1981, Administrative Law Judge J.
Pargen Robertson issued the attached Decision in
this proceeding. Thereafter, both the General
Counsel and the Respondent filed exceptions and
supporting briefs.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Trans-States
Lines, Inc., Fort Smith, Arkansas, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
i In his exceptions, the General Counsel implicitly challenges certain
credibility findings made by the Administrative Law Judge. It is the
Board's established policy not to overrule an administrative law judge's
resolutions with respect to credibility unless the clear preponderance of
all of the relevant evidence convinces us that the resolutions are incor-
rect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfl. 188
F,2d 362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing his findings.
2 In his exceptions, the General Counsel contends that Vinson Wagnon
was an agent of the Respondent at times pertinent herein. We find it un-
necessary to pass on this question because even assuming arguendo that
he was an agent, the Administrative Law Judge discredited his testimony.
In its exceptions, the Respondent contends that no remedial order is
necessary in this case. The need for a remedial order is obviated by a
"timely," "unambiguous," and "specific," repudiation of the unlawful
conduct that is "free from other proscribed illegal conduct," that is ade-
quately publicized to the employees, and that gives "assurances to em-
ployees that in the future their employer will not interfere with the exer-
cise of their Section 7 rights." Passavant Memorial Area Hospital, 237
NLRB 138, 139 (1978). We find there has been no such repudiation
herein.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge:
This case was heard on January 9, 1981, in Fort Smith,
Arkansas. The charge was filed on May 19, 1980, and
amended on July 3, 1980, and January 9, 1981.1 The
complaint, which issued on July 9, 1980, alleges that Re-
spondent Trans-States Lines, Inc., violated Section
I In accord with my instructions at the hearing, the General Counsel
submitted an amended charge as a late filed exhibit (G.C Exh. 10). I
hereby receive that exhibit in evidence.
256 NLRB No. 116
8(a)(l) of the National Labor Relations Act, as amended,
by maintaining and utilizing an application for employ-
ment which questions prospective applicants and em-
ployees as to their union affiliation, and Section 8(a)(l)
and (3) of the Act, by refusing to employ five job appli-
cants.
Upon the entire record,
2 my observation of the wit-
nesses, and after due consideration of the briefs filed by
General Counsel and Respondent, I hereby make the fol-
lowing:
A. Background Findings
Respondent operates a trucking company with its ter-
minal located in Fort Smith, Arkansas. Its operation does
not involve the direct employment of drivers. Rather,
Respondent leases most of its tractors, trailers, and driv-
ers from various trucking companies called fleet owners.
At times most material Respondent maintained leases
with three fleet owners. Each of those fleet owners sup-
plied Respondent with several tractors, trailers, and op-
erators.
Although only one respondent was named in the com-
plaint,i General Counsel alleges that Respondent and
one of its fleet owners, Wagnon Truck Leasing, Inc. (oc-
casionally referred to as Wagnon or Wagnon Leasing),
formulated and administered a common labor policy and
constituted a single integrated business enterprise.
4
The leases maintained between Respondent and its
fleet owners, including Wagnon, specified that the fleet
owner was an independent contractor and that neither
the fleet owner nor the fleet owner's employees were
I Errors ill the transcript are hereby noted and corrected.
I Immediately before resting, following the introduction of all its evi-
dence, the General Counsel moved to amend its complaint (simultaneous-
ly with the Union preparing an amended charge) to allege as additional
respondents two other corporations-Arkansas Best Corporation and
Riverside Furniture. Riverside Furniture is a wholly owned subsidiary of
Arkansas Best Corporation Respondent Trans-States Lines, Inc., is a
wholly owned subsidiary of Riverside Furniture. In arguing its proposed
amendment, counsel for the General Counsel indicated that he obtained
information which led him to believe there may be a parent-subsidiary
relationship among the three corporations, approximately a week before
the hearing. However, counsel for the General Counsel did nothing fur-
ther until the evidence was in and he was preparing to rest. I denied the
motion to amend. Subsequently, counsel for the General Counsel re-
newed its motion in its brief I hereby deny that renewed motion. Obvi-
ously, neither Arkansas Best Corporation nor Riverside Furniture has
been accorded procedural due process. The evidence did not show that
either was advised of the proceedings or of counsel for the General
Counsel's planned motion. Neither corporation made an appearance at
the hearing. To grant this motion now to amend would necessitate action
to correct those procedural requirements. Since counsel for the General
Counsel was aware of facts which placed him on notice as to the prob-
able parent-subsidiary relationship, it was his obligation to take action to
avoid unnecessary costs and delay. He failed to do so. Therefore, his
motion is untimely.
4 The complaint alleges that both Respondent and Wagnon Truck
Leasing, Inc., are employers. Respondent admitted both the commerce
and conclusionary allegations as to its status, but denied those allegations
as they refer to Wagnon. However, unrebutted evidence was received
proving the commerce allegations as to Wagnon. Therefore, I find that
both Trans-States Lines, Inc., and Wagnon Truck Leasing, Inc., were at
material times employers engaged in commerce within the meaning of
Sec. 2(2), (6), and (7) of the Act.
The complaint alleges, Respondent admits, and I find that the Charg-
ing Party (Union) is, and has been at all times material, a labor organiza-
tion within the meaning of Sec. 2(5) of the Act.
---
TRANS-STATES LINES, INC. 649
employees of Respondent. The lease required Respond-
ent to pay the fleet owners 78 percent of the total tariff
charges paid Respondent for each shipment carried by
the fleet owner. The lease specified, among other things,
that the fleet owner was responsible for hiring, setting
the wages, hours, and working conditions and adjusting
the grievances of, supervising, disciplining, and firing all
drivers, drivers' helpers, and other workers necessary for
the performance of the fleet owner's obligations under
the terms of the lease. The fleet owner was also charged
with selecting, purchasing, financing, and maintaining its
equipment. The fleet owner was responsible for the satis-
faction of all tax regulations, including withholdings, and
with maintaining workmen's compensation and public li-
ability insurance on the employees.
However, the processing of employee applications was
handled by Respondent. Employee application forms
were supplied to the fleet owners by Respondent. The
fleet owners then furnished each job applicant with the
necessary form. The completed application was sent to
Respondent for processing.
Respondent called Wilma Gayle Hanks, a clerical em-
ployee in Respondent's office, who testified that, upon
receipt of an application for employment with one of the
fleet owners, she would first log the application, then she
would conduct telephone tracers on the applicant's past
employment. Subsequently, Hanks would send the appli-
cation over to the Arkansas Best safety department
where an inquiry was conducted into the safety record
of the applicant. If the application was satisfactory,
Hanks would contact the fleet owners to set up an ap-
pointment for the applicant's physical examination and
wntten test.
The record clearly demonstrated that, during the proc-
essing of job applicants, Respondent exercised the au-
thority of rejecting applicants which it found to be unsa-
tisfactory. As an example, I note that Respondent's presi-
dent, James Udouj, testified that on one occasion he re-
fused to permit Wagnon to employ an applicant because
of the applicant's safety record.
The General Counsel alleges that the application forms
supplied to the fleet owners by Respondent contained a
question regarding the applicant's union affiliation in vio-
lation of Section 8(a)(1).
Additionally, the General Counsel alleges that Re-
spondent rejected five employee applications which were
submitted by Wagnon because those five had previously
belonged to the Union or had been employed by employ-
ers whose employees were represented by the Union.
In defense of the allegations Respondent first contends
that it was not a single integrated enterprise with
Wagnon and, therefore, had no responsibility as alleged
in the complaint. I find little support for that defense.
The record clearly demonstrates that Respondent was
fully involved in the employing process. They reviewed
all applications for employment with fleet owners and
frequently rejected those applications. In that regard, a
compilation of Respondent's business records, which
were offered into evidence by Respondent, showed that
before May 7, 1980, of the 124 applications submitted by
the fleet owners, Respondent approved only 41. During
that period Wagnon Truck Leasing, Inc., submitted 85
applications of which only 25 were approved by Re-
spondent. Additionally, the record reflected that Re-
spondent exercised other controls over the fleet owner's
employees. All dispatching from Fort Smith and a sub-
stantial amount of the dispatching for "backhauls" (pick-
ups for the return trips) were handled by Respondent.
Also, all warnings for safety violations were issued by
Respondent through the Arkansas Best safety depart-
ment.5 Therefore, I do not find that proof of the com-
plaint allegation that Respondent and Wagnon constitut-
ed a single integrated business enterprise is critical to the
allegations of unfair labor practices. Those allegations
run directly to Respondent's role in the employing proc-
ess. Respondent's involvement in that process is not in
serious question. Therefore, I find that Respondent and
Wagnon were at times material herein joint employers.6
B. Conclusions
1. The 8(a)(1) allegations
As indicated above, the evidence proved that Re-
spondent furnished the fleet owners with employee appli-
cation forms. Upon completion of those forms by an ap-
plicant, the fleet owner forwarded the application to Re-
spondent for processing. A copy of the form supplied to
Wagnon Leasing was admitted into evidence. That form
contained the following statement, inter alia:
Are you a member of a labor organization:
(Name) (Local) (State)
Respondent President James Udouj admitted furnish-
ing the application forms containing the above question
to Wagnon Leasing for their use in processing applicants
for employment. Udouj also admitted that other fleet op-
erators were furnished the same form by Respondent.
The Board has continually found similar questions on
employee application forms to constitute illegal interro-
gation in violation of Section 8(a)(l) of the Act. (Central
Transport, Incorporated, 244 NLRB 656 (1979); Boatel
Alaska, Inc., 236 NLRB 1458 (1978); Bighorn Beverage,
236 NLRB 736, 751 (1978).) Therefore, I find that Re-
spondent engaged in illegal interrogation of job appli-
cants in violation of Section 8(a)(l) of the Act.
2. The 8(a)(3) allegations
The General Counsel's case in support of the five
8(a)(3) allegations relies heavily on the testimony of
Vinson Wagnon, president of Wagnon Leasing.
In his role of one of Respondent's fleet owners,
Wagnon would occasionally take employee applications
to Respondent's office for processing. Wagnon testified
that he occasionally discussed job applications with Re-
spondent's president, Udouj, and that Udouj sometimes
rejected applicants for various reasons, including "health,
5 Respondent contracted with the Arkansas Best safety department to
handle its safety program
e See .4.P, Inorporated, 218 NLRB 33 (1975) However. the evidence
failed to show that Vinson Wagnon was an agent of Respondent Vinson
Wagnon was only a supervisor and agent of Wagnon Leastng. Inc
TRANS-STATES LIN , NC 49
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
different things... . Sometime it would be because they
belonged to the Union."
Specifically, Wagnon testified that on one occasion he
took five applications over and discussed them with
Udouj. According to Wagnon, Udouj said that "there
would be no way he would consider it [the application]
as long as they belonged to the local union." Wagnon
identified only three of the five applications-those being
the applications of Donald Hunter, Norman Goldsbor-
ough, and Tommy Evans (three of the alleged discrimin-
atees).
As to alleged discriminatee Leonard Jensen, Wagnon
testified that he did not know what happened involving
Jensen's application since he was not personally involved
with that one.
Wagnon testified that alleged discriminatee Harold
Warren applied for employment with Wagnon Leasing.
Warren filled out his application at Wagnon Leasing and
left to take the application directly to Respondent's
office. Warren told Wagnon that he was acquainted with
Wanda Ellis at Respondent's office.
According to Wagnon, Wanda Ellis subsequently
called him and said Respondent was going to put Warren
to work. Ellis asked Wagnon to contact Warren and
advise Warren that she had set up an appointment for
Warren with Respondent's doctor at 8 a.m. the following
day (May 7).
However, Wagnon testified that James Udouj called 1-
1/2 to 2-1/2 hours after Wagnon's conversation with
Wanda Ellis and told him they had second thoughts
about Warren. Udouj said that Warren "caused a lot of
trouble through the Teamsters." Udouj asked Wagnon to
contact Warren and make up any kind of excuse for
Warren not to report in the next day. Wagnon testified
that Udouj called back to see if he had contacted
Warren. Ultimately, Wagnon told Udouj that he would
not call Warren, that "if [Udouj] wanted to lie to
[Warren], he could call him himself."
Respondent questioned the reliability of Vinson Wag-
non's testimony which was contested on all points mate-
rial to the 8(a)(3) allegations. In some respects the record
supports Respondent's argument.
The record showed that Wagnon was biased against
Respondent. On May 7, 1980, Wagnon wrote all of his
drivers and expressed strong dissatisfaction with the way
James Udouj and Respondent's dispatcher, Forrester,
were assigning work. On that same day Wagnon wrote
James Udouj and complained about work assignments to
Wagnon Leasing. In closing that letter, Wagnon stated:
Jim, I am losing my faith in you. You have lied to
me too many times. And if this letter doesn't set
with you, just let me know and I will pick up my
equipment, tear up the contract, and you can let
your owner-operator and trip leasors haul your
freight.
On May 8 Udouj responded to Wagnon's May 7 letter
by terminating the lease between Wagnon and Respond-
ent.
Additionally, portions of Wagnon's testimony conflict-
ed with other evidence. For example, Wagnon testified
that during April 1980 he visited Respondent's offices
from one to four times each week. However, Respond-
ent's clerical employees, Ellis and Hanks, testified differ-
ently. Ellis and Hanks were stationed in Respondent's
office where they could observe anyone entering and
leaving the office area. Ellis testified that from March
until May 7 Vinson Wagnon came by Respondent's
office no more than two times. Wilma Hanks testified
that she started to work with Respondent on February
11, 1980. From the time of her employment, she assumed
the job formerly handled by Ellis of processing fleet
owners' employment applications. Hanks testified that,
during the entire period of her employment up to the
time the Wagnon lease was terminated, she saw Vinson
Wagnon at Respondent's office "three or four times . . .
five at the very most. Other evidence convinces me that
the testimony of Ellis and Hanks was more in line with
the true situation than that of Vinson Wagnon. Roy
Rogers, one of Wagnon's drivers who was called by the
General Counsel, testified that he "hardly even saw"
Vinson Wagnon. Wagnon was also involved in handling
another business during the time in question-Crawford
County Tire Center. Although he testified to taking em-
ployee applications to Respondent's office, Wagnon ad-
mitted that his brother, Dale Wagnon, was the one who
was primarily involved with taking the applications over
to Respondent. That fact squares with the testimony of
Ellis and Hanks who testified that Dale Wagnon fre-
quently visited Respondent's office during March and
April 1980.
Also, I notice that Wagnon, in his testimony about de-
livering applications to Respondent, never mentioned
giving the applications to Hanks. That testimony tends to
support the testimony of Hanks and Ellis that Vinson
Wagnon did not frequent Respondent's office after
Hanks was hired on February 11, 1980.
Additionally, although Vinson Wagnon indicated that
he was concerned about Respondent's alleged refusal to
consider applicants with union connections, I note that
he mentioned nothing about his concern with Respond-
ent's treatment of employee applications in his May 7
letter to Respondent. In that letter Wagnon complained
about Respondent's handling of his lease. That letter pre-
cipitated termination of Wagnon's lease.
On the basis of the evidence demonstrating Vinson
Wagnon's bias and evidence demonstrating that areas of
his testimony do not square with probabilities and other
evidence, I am unable to credit his testimony to the
extent it is contested by other evidence.7
Against that background, I shall now consider the evi-
dence as to each of the alleged discriminatees.
7 My concern over Wagnon's testimony about the frequency of his
visits to Respondent's office during April 1981 is prompted by the fact
that that is the period during which Wagnon allegedly carried the five
applications to James Udouj. No evidence was offered to show why
Vinson Wagnon was involved with those applications rather than his
brother, Dale Wagnon, who usually handled the applications. Dale
Wagnon did not testify.
TRANS-STATES LINES, INC. 651
C. Discriminatees
1. Leonard Jensen
No substantive evidence was offered in support of the
allegation as to Jensen. Jensen testified that he submitted
an application to Wagnon Leasing and subsequently in-
quired of his application. While he was present in Wag-
non's office, the Wagnon secretary placed a call to Re-
spondent. She was told that Respondent did not have an
application for Jensen. Respondent's log of applicants,
which was received in evidence, shows that no entry
was ever made illustrating receipt of an application by
Jensen.
No evidence was submitted showing that Jensen's ap-
plication was ever received by Respondent. Vinson
Wagnon testified that he was not personally involved
with Jensen's application. In view of the lack of evi-
dence, I find that the General Counsel has failed to
prove its allegations regarding Jensen.
2. Donald Hunter, Tommy Evans, and Norman
Goldsborough
Donald Hunter testified that he submitted an employee
application to Wagnon Leasing around the first of April
1980 and checked back with Wagnon Leasing 2 weeks
later. Wagnon's secretary called Respondent and was
told that Hunter's application limited his availability to
"part time," and had not been processed. Hunter testified
that he then told Vinson Wagnon to have his application
changed to show he wanted full-time work.
After 2 more weeks Hunter again checked back with
Wagnon. On that occasion Norman Goldsborough was
also present in Wagnon's office. According to Hunter,
Goldsborough had submitted an application 2 weeks ear-
lier.8 Hunter testified that, when he returned to the
office on this occasion, Vinson Wagnon was not present.
Wagnon's secretary, Sue Hinton, told Goldsborough and
Hunter that "Trans-States Lines was not going to hire us
because [we] belonged to the Union. " 9
Hunter had no direct contact with Respondent regard-
ing his application.
Tommy Evans testified that he applied for employ-
ment with Wagnon Leasing around April 1, 1980. He
testified that he was told by Larry Breedan'O and by
Vinson Wagnon that he was not hired because he be-
longed to the Teamsters. Evans testified that on one oc-
casion he went to Respondent's office and spoke to the
dispatcher. According to Evans, the dispatcher went
back to check with Udouj. Upon returning, the dispatch-
er told Evans that Evans' employment would have to be
considered by Wagnon.
Goldsborough did not testify
9 Respondent objected to receipt of this testimony from Hunter as
being hearsay I ruled that I would receive the evidence only to the
extent that it was not probative of any action of Respondent. Sue Hinton
did not testify during these proceedings. Therefore I cannot conclude
that Hinton had firsthand knowledge of Respondent's position.
'° Evans testified, after being recalled by Respondent, that Larry ree-
dan has a truck line Evans testified that he as unaware that Breeden
was ever employed by Respondent and that, to his knowledge. Breeden
never talked to anyone with Respondent about Evans not being hired.
Both Evans and Hunter testified that they were em-
ployed by Gordon's Transport before applying at
Wagnon and that the Gordon's employees were repre-
sented by the Teamsters.
Respondent's records demonstrated that no application
was received for either Tommy Evans or Norman
Goldsborough. Respondent's log does reflect receipt of
an application from Donald Hunter-on March 20, 1980.
James Udouj denied that he ever had a conversation
with Vinson Wagnon regarding the applications of
Evans, Goldsborough, and Hunter. Udouj testified that
he never told Wagnon or anyone else that Respondent
would not permit anyone to drive over Trans-States au-
thority who belonged to the Teamsters or who had been
employed by someone whose employees were represent-
ed by the Teamsters.
As indicated above, the evidence indicated that Wilma
Hanks handled the processing of applications on behalf
of Respondent after February 11, 1980. Hanks testified
that Respondent never received applications for employ-
ment from Tommy Evans, Norman Goldsborough, or
Leonard Jensen. Hanks testified that the log reflected re-
ceipt of an application from Donald Hunter. However,
she testified, she had no independent recollection as to
why that application was not approved. Hanks did testify
that the log reflected that Hunter's application was
stopped at the request of Dale Wagnon. "
3. Harold Warren
Warren testified that, after completing his employment
application at Wagnon, he took the application to Re-
spondent's office on May 5, 1980. There he gave the ap-
plication to Wanda Ellis whom he knew since they both
worked at Arkansas Best Corporation, Scat Division, in
1971 through 1973. According to Warren, Ellis asked
him what he thought about the Union. Warren testified
that he replied: "Well, some I was for, some against, I
didn't go 100 percent." Ellis replied: "Well, you have to
be 100 percent here. Mr. Udouj didn't want the Union in
here." Warren testified that Ellis advised him not to say
anything about the Union. While Warren was there talk-
ing with Ellis, James Udouj came out and was intro-
duced to Warren by Ellis. Warren testified that he asked
Udouj if he could make 4,000 miles a week and that
Udouj replied that he could and that Respondent had
more work than they could handle. Warren testified that
Udouj told him to be ready for work as soon as they got
his application cleared, possibly by Wednesday (May 7).
Warren testified that Udouj also said that they had all
the work they could handle with 103 trailers sitting in
the yard with only 3 empties.
Warren testified that on the following morning, May
6, he received a call from Dale Wagnon directing him to
be at Respondent's office at 8 o'clock the next morning
to take his physical and driver's test and to be ready to
go to work.
I I An examination of the log itself reflects the entry "per Wagnon"
opposite Donald Hunter Hanks testified that that entry would refer to
Dale Wagnon since she always dealt with him Dale Wagnon was not
called to dispute this testimony by Hanks
TRANS-STATES LINES. NC.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warren testified that he reported the following morn-
ing and, after some difficulty getting in, he was finally
permitted to talk to Udouj. According to Warren, Udouj
told him that the whole bottom had dropped out of ev-
erything and that he only had three trailers loaded and
had three drivers there to pull those loads. Warren asked
if Wanda Ellis was there and Udouj replied that no, Ellis
was on vacation and that the doctor was on vacation,
too.
Warren's testimony was disputed by both Ellis and
Udouj. Ellis admitted talking with Warren when he
brought his application. However, she denied mentioning
anything about a union. Udouj testified that Warren did
report on the morning of May 7. Warren told Udouj that
Wagnon had told him that Ellis had set him up for a
physical examination. According to Udouj, he told
Warren that was impossible-that Ellis was on vacation
and the doctor was out of town and would be out all
week. 2 Udouj checked with Wilma Hanks who told
him that Warren's application had not been completely
processed. Udouj then called Vinson Wagnon and ex-
plained the situation to him. Udouj testified that Wagnon
said there was a mixup which evidently came from his
brother. According to Respondent's evidence, Warren's
application was not rejected. Since the Wagnon lease
was terminated on May 7, Warren's application, which
was in the processing pipeline, was not processed to con-
clusion.
As mentioned above, the testimony of Vinson Wagnon
presented credibility difficulties which I cannot ignore.
The evidence as a whole lends itself to a suspicion of
wrongdoing. However, unless Wagnon's testimony is
fully credited, there remains no probative evidence of
wrongdoing by any of Respondent's agents.
Other evidence casts doubt on General Counsel's case.
The parties stipulated that Respondent has permitted the
employing of drivers, knowing those drivers were for-
merly employed where employees were represented by
the Charging Party. No evidence was offered to show
that any of the alleged discriminatees engaged in any un-
usual activity which would likely cause alarm by an an-
tiunion employer. Only Harold Warren among the al-
leged discriminatees testified that he indicated on his ap-
plication that he was a member of the Charging Party.
As to the others, the evidence indicated only that on one
or more occasions before their application with Wagnon
Leasing they were employed by someone whose employ-
ees were represented by the Union. Therefore, the evi-
dence did nothing to distinguish the union activities of
the alleged discriminatees from those applicants who
were employed with the approval of Respondent, and
who had formerly worked for employers whose employ-
ees were represented by the Union. Additionally, Carl
Henley, who was called by Respondent, testified that he
was hired by one of Respondent's fleet owners in Janu-
ary 1980. Henley testified that his last employer before
January 1980 was Mohawk Rubber Company in West
Helena, Arkansas, and that the employees there at
Mohawk were represented by a union. Henley testified
*2 Unrebutted testimony supported Udouj by showing that the examin-
ing physician was out of town on May 7 and that Wanda Ellis was on
vacation on that day.
that e was a job steward at Mohawk. None of the al-
leged discriminatees was shown to have engaged in
union activity similar to, or more extensive than, that of
Henley.
The testimony of Harold Warren certainly contributes
to the suspicion of wrongdoing. However, it is clear
from the record that Warren's testimony was exaggerat-
ed. He testified that James Udouj assured him that he
would be able to make at least 4,000 miles a week driv-
ing for Respondent. Other unrebutted evidence indicated
that such a figure was unrealistic, that there was no
probability of any of Respondent's drivers making that
many miles in any week. Warren also testified that
Udouj told him that they had 103 trailers in the yard.
However, unrebutted evidence indicated that Respond-
ent's yard is incapable of handling more than 48 trailers
and that at the time of Udouj's conversations with
Warren the yard had never been completely filled. War-
ren's testimony regarding his conversation with Wanda
Ellis could not be considered as conclusive of Respond-
ent's actions, since Ellis was not proved to be an agent
of Respondent. The exaggerations by Warren cast doubt
as to whether his account of that conversation was cor-
rect. Under the circumstances, I cannot determine that
Warren's testimony evidences improper action by Re-
spondent.
Therefore, I have determined that the credited evi-
dence does not support the General Counsel's allegations
that Respondent engaged in 8(a)(3) activity.
CONCLUSIONS OF LAW
1. Respondent Trans-States Lines, Inc., is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Wagnon Truck Leasing, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
3. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union
373, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
4. Respondent, by interrogating employees about their
union membership by including a question about union
membership in its employment application form, violated
Section 8(a)(1) of the Act.
5. Respondent did not engage in violation of Section
8(a)(1) and (3) of the Act by refusing to employ Donald
Hunter, Leonard Jensen, Tommy Evans, Norman Golds-
borough, and Harold Warren.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
TRANS-STATES LINES, INC. 653
ORDER 1 3
The Respondent, Trans-States Lines, Inc., Fort Smith,
Arkansas, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Interfering with, restraining, and coercing its em-
ployees in the exercise of rights guaranteed them in Sec-
tion 7 of the Act in violation of Section 8(a)(1) of the
Act by interrogating its employees about their union
membership by including a question about union mem-
bership in its employment application form.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights to self-organization, to form, join, or assist a
labor organization, or to refrain from any and all such
activities.
2. Take the following affirmative action designed and
found necessary in order to effectuate the policies of the
Act:
(a) Post at its facility in Fort Smith, Arkansas, copies
of the attached notice marked "Appendix."' 4 Copies of
13 In the event no exceptions are filed as provided by Sec. 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as prolvided
in Sec. 102.48 of the Rules and Regulations, be adopted hy the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
14 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by
Order of the National abor Relations Board" shall read "'osted Pursu-
said notice, on forms provided by the Regional Director
for Region 26, after being duly signed by an authorized
representative of Respondent, shall be posted by it imme-
diately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAl. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees about
their union membership by including a question
about union membership in our employment appli-
cation form.
WE WIL. NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of rights guaranteed them in Section 7 of
the National Labor Relations Act, as amended.
TRANS-STATES LINES, INC.
TRANS-STATES LIN , IN. 3