Transport Clearings, Inc.

National Labor Relations Board - Board Decisions

Oct 2, 1961

133 N.L.R.B. 607 (N.L.R.B. 1961)

TRANSPORT CLEARINGS, INC. 607
were discharged because of their union activities on this same date. When this is
taken into consideration, along with other remarks of Agee on this date which
were clearly violative of the Act and stand uncontradicted and undenied in the
record, such as his statement to Wayne Adams as regards the "damn union," then
his remarks to Turner were unquestionably coercive and by their very nature con-
stituted interference with, restraint, and coercion and consequently were violative
of Section 8 (a) (1) of the Act, and it is so found.
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 the Respondent set forth in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent discriminated against Wayne Adams,
Henry Richardson, Montene Richardson, and Clarence Adams. It will be recom-
mended that the Respondent offer Wayne Adams, Henry Richardson, and Clarence
Adams immediate and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other rights and privileges, and
make them and Montene Richardson whole for any loss of pay they may have
suffered by reason of Respondent's discrimination against them by payment to
them of sums of money equal to that which they normally would have earned as
wages from the dates of discrimination to the date of an offer of reinstatement,
less their net earnings during such period. Said backpay shall be computed on a
quarterly basis in the manner established by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Sweet Sue Poultry Company is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Textile Workers of America, AFL-CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
3. By discriminating against Wayne Adams, Henry Richardson, Montene Richard-
son, and Clarence Adams, the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
unfair labor practices within the meaning of Section 8(a) (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Transport Clearings , Inc. and Office Employees International
Union , Local 45, AFL-CIO
Transport Clearings, Inc. and Peggy A. Sims. Cases N08.16-CA-
1429 and 16-CA-1429-2. October 2, 1961
DECISION AND ORDER
On April 4, 1961, Trial Examiner John F. Funke issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
133 NLRB No. 82
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. The Trial Examiner further found that the Re-
spondent had not engaged in certain unfair labor practices alleged
in the complaint and recommended dismissal of these allegations.
Thereafter, the General Counsel and the Respondent filed exceptions
to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this proceeding, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
The Trial Examiner found, and we agree, that the Respondent
discriminatorily discharged Lindsey and Brewer, and that it made
coercive remarks to employees about their union activities.' The
General Counsel contends that Sims also was discharged for union
activity, while the Employer claims that she was terminated because
she consistently made mistakes in billing its customers, and had
recently incorrectly drafted charges to its Beechnut account. We
agree with the Trial Examiner, contrary to our dissenting colleague,
that the record does not establish that Sims was discriminatorily
discharged.
The record establishes that Lindsey and Brewer, who were the
acknowledged leaders of the union organizational campaign, were
discharged, respectively, on October 17 and 25, each of them in the
middle of a pay period, and shortly after supervisors had made re-
marks to each of them indicating opposition to their union activities.
On the other hand, Sims, whose only union activity was attendance at
one organizational meeting, was discharged on November 1, at the
end of a pay period, and no supervisors had addressed any antiunion
remarks to her. The record, in fact, does not show that there was any
union activity whatsoever following the discharge of Brewer on
1 Upon an examination of the entire record, we find without merit the Respondent's
allegations of bias and prejudice on the part of the Trial Examiner
awe do not agree with the Trial Examiner 's recommended issuance of a narrow cease-
and-desist order As we are convinced that the discriminatory discharges go to the very
heart of the Act, and that it may be anticipated , from the conduct found herein , that the
Respondent may commit other violations of the Act in the future , we shall issue a broad
cease-and-desist order. N L.R B v Entwistle Mfg. Co., 120 F. 2d 532, 536 (CA. 4) ;
N L R B. v. Central Mercedsta, Inc, 288 F 2d 809, 812 (C A. 1).
TRANSPORT CLEARINGS, INC. 609
October 25. Sims was discharged about a month after she had in-
formed the Respondent of an error in a customer account, namely the
Beechnut account. However, the discharge coincided with the day
on which Beechnut informed the Respondent that it had noticed the
error and that it had been undercharged. The record establishes that
Sims was responsible for this error, and testimony of her fellow em-
ployee indicated that Sims had made frequent errors. While it is
true that Sims received three individual wage increases during the 11
months she was employed, it appears from the record that it was the
Respondent's practice to give frequent small wage increases to its
employees and there is no showing that Sims received more increases
than other employees. Moreover her last wage increase antedated her
report to the Respondent of the Beechnut error.
The dissent attaches significance to the fact that Sims was dis-
charged a day or two after the Respondent discovered her name on a
list of employees in Brewer's desk. The list, marked "want union,"
included the names of Brewer, Lindsey, and seven others, and the
names appear to be in the same handwriting. There is no showing that
Sims had signed the list or had authorized anyone to place her name
on the list. It is also significant that none of the remaining seven,
except Sims, was discharged. Furthermore, prior to the Respondent's
discovery of this list, a number of employees, including Sims, had
signed an antiunion petition, which was given to the Respondent on
October 24, several days before Sims' discharge. In all these circum-
stances, we find that this evidence fails to establish that the list was
an operative factor in the discharge.
Accordingly, for the reasons set forth above and in the Intermediate
Report, we find, as did the Trial Examiner, that the General Counsel
has not met the burden of proof required to sustain the alleged dis-
criminatory discharge of Sims. We shall therefore dismiss this alle-
gation of the complaint.'
3 Member Brown would find that Respondent discriminatorily discharged Peggy Sims,
as well as Lindsey and Brewer. The record discloses that after discharging Brewer on
October 25 , and while cleaning out the latter ' s desk on or about October 30, ward came
upon written information indicating Sims ' union sympathies . Sims was escorted by ward
to Sayles ' office and was discharged November 1 The reason assigned at the time for
her discharge was an error in the Beechnut account However , Sims herself had called
the Beechnut billing error to Sayles ' attention a month earlier while discussing another
account with which it apparently had become intermingled No reprimand or warning
was given at that time . When Sayles discharged Sims, he commented that she was not
cut out for this type of work. A list of other alleged mistakes by Sims, alluded to by the
Trial Examiner and assigned by Respondent as the reason for her discharge , was ad-
mittedly not compiled until 3 days after her discharge Sims had received three wage
increases during her tenure of employment of less than 1 year with Respondent, the last
one a month before her discharge The record indicates that these increases were not
connected with any across -the-board general increases or with any automatic increase
related to tenure Considering the circumstances of Sims' discharge , coining as it did
immediately after Respondent discovered evidence of her union sympathy, together with
the unlawful discharges of Lindsey and Brewer , and the further demonstrations of
624067-62-vol. 133-40
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Transport Clear-
ings, Inc., Dallas, Texas, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in Office Employees International
Union, Local 45, AFL-CIO, or in any other labor organization, by
terminating any of its employees or discriminating in any other man-
ner in respect to their hire or tenure of employment or any term or
condition of employment.
(b) Interrogating employees regarding their union membership,
activity, or sympathy or their knowledge of union membership or
activity in a manner constituting interference, restraint, or coercion
in violation of Section 8 (a) (1) of the Act.
(c) Threatening employees that the operation would close and girls
would be walking the streets if the Union came in.
(d) Telling employees that they were putting all jobs in jeopardy
by engaging in union activity.
(e) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Office Employees International
Union, Local 45, AFL-CIO, or any other labor organization, and to
engage in other concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection, or to refrain from any and
all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act :
(a) Offer to Billy Jerome Lindsey and Bobby L. Brewer immedi-
ate and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay they may have
suffered by reason of the discrimination against them in the manner
and method set forth in the section of this report entitled "The
Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination or copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all
other records helpful in analyzing the amount of backpay due and
the right of reinstatement under the preceding provision.
Respondent's union animus, Member Brown would find that the reason given by Respondent
for Sims' discharge was a pretext and that she was in fact discharged in violation of
Section 8 ( a)(3).
TRANSPORT CLEARINGS, INC. 611
(c) Post at its place of business at Dallas, Texas, copies of the
notice attached hereto marked "Appendix." ' Copies of said notice, to
be furnished by the Regional Director for the Sixteenth Region, shall,
after being duly signed by the Respondent's authorized representative,
be posted by the Respondent immediately upon receipt thereof, and
be maintained for a period of 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Sixteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that those allegations of the complaint re-
lating to the termination of Peggy A. Sims be, and they hereby are,
dismissed.
' In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT discourage membership in Office Employees
International Union, Local 45, AFL-CIO, or any other labor
organization, by discriminating in respect to the hire, tenure, or
other conditions of employment of any employee.
WE WILL NOT interrogate our employees concerning their union
membership, activity, or sympathy in a manner constituting inter-
ference, restrain, or coercion; threaten our employees that the
operation could close down and that our employees might be
walking the streets and looking for jobs if they selected a union;
and tell our employees that they are placing all jobs in jeopardy
by engaging in union activity.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist the
above-named or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all such activities.
WE WILL offer to Billy Jerome Lindsey and Bobby L. Brewer
immediate and full reinstatement to their former or substantially
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equivalent positions, without prejudice to their seniority or other
rights and privileges , and make them whole for any loss of pay
suffered as a result of the discrimination against them.
All our employees are free to become, remain, or refrain from
becoming or remaining members of any labor organization, except to
the extent that this right may be affected by an agreement in con-
formity with Section 8 (a) (3) of the Act, as modified.
TRANSPORT CLEARINGS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDATIONS
STATEMENT OF THE CASE
The above proceedings , with the General Counsel, the Respondent , and the
Charging Union represented , came on to be heard before the duly designated Trial
Examiner on January 4 , 5, and 6, 1961, at Dallas, Texas, upon an order consolidat-
ing the cases , the consolidated complaint of the General Counsel, and the answer
of Transport Clearings , Inc., herein called the Company or the Respondent.
The consolidated complaint alleged that Respondent threatened its employees with
economic reprisals if they joined Office Employees International Union , Local 45,
AFL-CIO, herein called Local 45 or the Union , interrogated its employees as to
their union activity and membership , and discharged three employees because they
joined the Union . It was alleged that by these actions Respondent violated Section
8(a)(l) and (3) of the Act.
The answer denied the violations alleged and affirmatively asserted that the
employees were discharged for cause.
At the conclusion of his prima facie case the counsel for the General Counsel
moved to strike paragraph 13 of the complaint . The motion was granted . Counsel
for Respondent moved to dismiss those allegations of the complaint which alleged
that the discharges of three employees were in violation of Section 8(a) (3) and (1)
of the Act. The Trial Examiner reserved decision on this motion and it is now
disposed of in accordance with the recommendations made herein.
The parties waived oral argument. A brief was received from the General
Counsel on February 13.
Upon the entire record in this case , and upon my observation of the witnesses,
I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS . OF THE RESPONDENT
Respondent is a Texas corporation having its principal place of business at Dallas,
Texas. Respondent purchases the freight bills of some 20 motor freight carriers
operating in the State of Texas of which 17 are interstate carriers transporting freight
valued in excess of $50,000 annually to points outside the State of Texas . Three of
said carriers are intrastate carriers operating in the State of Texas transporting
freight valued in excess of $50,000 annually originating in shipment outside the
State of Texas. Respondent collected in excess of $20,000,000 in bills of said
carriers during the immediate past 12-month period and received in excess of
$50,000 from such operations during the immediate past 12-month period.
Contrary to the contention of Respondent , I find that it is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.'
II. THE LABOR ORGANIZATION INVOLVED
Office Employees International Union , Local 45, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
1 Siemons Mailing Service , 122 NLRB 81.
TRANSPORT CLEARINGS , INC . 613
HI. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
1. Evidence of interference , restraint , and coercion
In the operation of its business Respondent employed some 27 or 28 clerical
employees who had never been represented by a labor organization. Sole re-
sponsibility for the management of the business was vested in F. H . Sayles, Respond-
ent's general manager. Sayles was assisted by his office manager, Ralph Ward, the
only other employee who enjoyed supervisory status.
In October 1960 Ward informed Sayles that union activity was taking place in
the office . According to Sayles, Ward described it as "union rumblings " and Sayles
told him to forget it. Ward did not forget it , however , and he later told Sayles
that there was to be a union meeting and later in October Sayles himself noticed
that employees were talking to each other on matters not concerned with their work.
(How Sayles knew it was matters not concerned with their work is not explained.)
Sometime during the week of October 17 Sayles was informed by Ward that Bob
Brewer, account clerk, was contacting employees during their working time regard-
ing the Union and Sayles concluded that Brewer was the leader of the union activity.2
Ward told Sayles that he had instructed Brewer not to pursue this activity during
working hours and when another employee , Wesley Frost, complained to Sayles
concerning Brewer's effort to solicit him Sayles directed Ward to have Brewer stop.
Brewer testified that he was the first employee to talk to Mrs. Lynn Davis,
organizer of Local 45 , and that she suggested a meeting with the employees. The
first meeting was held at the B & B Cafe on Friday, October 14, and among the
employees who attended were Lindsey, Brewer, Don Bear, Peggy Sims , and Pearl
Martin .3 On the Monday following this meeting , October 17 , Lindsey was fired, a
discharge which will be discussed infra.
Pearl Martin, a ledger clerk employed by Respondent ,4 testified that she signed a
union card at this meeting and that either on the following Monday ( October 17)
or shortly thereafter Ward came to her desk and asked her what she thought about
the Union . She told him that if it meant sick leave with pay and decent annual
raises she was for it. After further discussion Ward told her that "if this place
goes Union there will be twenty-odd women walking the streets looking for jobs,
because the doors will be closed tight." Ward denies making any such interrogation
or any such statement , but I credit the testimony of Martin .5
A few days after the October 14 union meeting 6 general discussion of it took
place among Bear, another account clerk , Sayles, and Ward , according to the testi-
mony of Bear. Bear states that the three were discussing an article on unions in
the "Wall Street Journal" when he was asked by Sayles if he had attended "that
deal last night ," referring to a union meeting. Bear told him that he had gone to a
dinner and "discussed a matter ," after which he was asked by Sayles if Jackie Hester,
Sayles' secretary , and Joy Jones, another employee, had attended. Ward's testi-
mony is that Bear volunteered the information and told them ( Sayles and Ward)
everything that happened. Sayles denied interrogating Bear about the meeting and
denied interrogating him about the attendance of Hester and Jones . I accept the
testimony of Bear as credible insofar as it relates to the circumstances under which
the conversation took place , including the initiation of the discussion.?
2 Ward 's own testimony is that he thought Bill Lindsey had started the movement and
that Brewer had picked it up when Lindsey dropped it Lindsey was fired on October 17,
prior to the time when Sayles was told that Brewer was contacting employees , so Sayles'
conclusion is not in contradiction with Ward's
3 Brewer testified that eight or nine employees attended the meeting
4 Martin was still employed by the Respondent at the time of the hearing
5 Most of the vital issues In this case turn upon credibility and I shall state the reasons
for my findings at greater length under that part of this report entitled "Conclusions "
IIn his examination of Bear the General Counsel fixed the date as October 21 On
cross -examination Bear himself fixed the date as the Monday following the meeting, which
would he October 17 Since the Monday following a union meeting would be an easier
fixation than a calendar date I find that the conversation took place on the 17th
7 As to this conversation it must be noted that Ward admitted it took place but states
that the disclosures were voluntary on the part of Bear This I find difficult to believe
Sayles' testimony would lead to the belief that no such conversation ever took place since
lie merely denied , in blanket form , Bear's testimony
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bear further testified that on three separate occasions 8 Ward told him that it
was possible for the Company to close if it went union and that three separate
trucking companies which were not union might withdraw as contributors to the
Respondent , in which case Respondent could not stay in business . Although each
of these conversations and statements is denied by Ward, I credit Bear.
Delores Tidwell , a copy girl employed by Respondent and still in its employ at
the date of the hearing , testified that she signed a union card on Monday , October 17,
and that on October 21 Ward came back to the film room where she was working
and asked her if anyone had come back there and asked her to join the Union.
She said no one had , and Ward then told her not to lie to him and told her the doors
would be closed if the Union came in and there would be a lot of girls looking for
jobs. She testified that she worked the next day, which was a Saturday , and that
Ward asked her how she felt about the Union and that she told him she thought
"things were doing O.K. just as they were ." He then asked her how her sister
(Lynell Caldwell ) felt about it and she said her sister felt the same way. Both con-
versations were denied by Ward , but I credit the testimony of Tidwell.
2. Evidence of violation of Section 8(a)(3)
a. Billy Lindsey
Billy Jerome Lindsey was employed by Respondent as a collector on July 12, 1960,
and discharged on October 17. On October 14 he attended the meeting at the B & B
Cafe and signed an authorization card with Local 45. Lindsey testified that on
October 14 (and before the meeting ) Ward came to his desk and told him someone
had been passing the rumor around that he (Ward ) had been going to Sayles about
"this union ." Ward denied that he had gone to Sayles and told Lindsey he did not
care if it went union . Lindsey stated that he told Ward the union talk was not new
and that he was as guilty as Brewer of organizing the Union . He mentioned to Ward
that they might all be fired and Ward told him he did not think Sayles would fire
everyone.
On the following Monday, October 17, Lindsey was called into the office by Sayles,
who told him that he had been going over his accounts , that he was not keeping his
accounts as he should , and that he (Sayles ) was getting a boy from a (motor ) freight
line who had more experience . 9 Lindsey asked if this was the only reason he was
fired and Sayles said it was-that he had no animosity toward him Lindsey testified
that he had received no prior warnings concerning the condition of his accounts and
that he had been complimented on his last trial balance sheet ( this would be the
September balance sheet) shortly before he was fired.
Pearl Martin , ledger clerk , testified that she worked on Lindsey 's accounts and that
there was a definite decrease in the delinquencies from August to September.'°
Sayles testified that in August 1960, he turned full responsibility for the collec-
tions of accounts over to Ward . He said that when he and Ward went over to "past
due sheets" for September they were in worse condition than for the preceding
month . Although Sayles had not given Lindsey any warning or discussed the condi-
tion of his accounts with him he called him to his office , told him that his accounts
were in arrears , that he had not been putting enough effort into his collections, and
that it would be necessary to make a change . Sayles denied that he knew that
Lindsey was a member of the Union or that he had engaged in union activity when
he fired him.
Ward was Lindsey's immediate superior and had been an account collector himself.
He testified that he warned Lindsey in August ( Lindsey had only been on the job a
month ) that he was falling behind in collections and that if he could not do the work
the Company would get someone who could Tn September there was more money
outstanding and in the middle of September Ward spoke to Sayles about the condi-
tion of Lindsey 's account and was instructed to work with him more-to give him
another chance . The October balance, according to Ward , was even worse and
Ward told Savles he did not think that Lindsey was working out . It was then, or
shortly thereafter, that Lindsey was discharged by Sayles and the date was October 17.
s The only expressions of animus toward the Union admitted by Ward are statements
that he would fight the Union and that he was not in favor of the Union He also testified
that he asked employees if they had to join a union and that he told them it was their
privilege to loin or refrain
9 Lindsey 's replacement was Wesley Frost , who had not worked for a freight line and
who had no experience as a collector
Is The account sheets themselves were kept in such a way that it was imnossible to
determine from the sheets themselves exactly what progress was made at what time
TRANSPORT CLEARINGS , INC. 615
Contrary to the statement Sayles allegedly made to Lindsey concerning recruiting
a man with freight line experience , Ward testified that the Company had not inter-
viewed nor known Frost ( who was hired through an employment agency ) prior to
the discharge of Lindsey.
Although Ward admitted on cross-examination that he suspected that Lindsey had
started the union movement , he denied (on direct ) that he knew Lindsey was a
member of the Union or that he had engaged in union activity. He also denied that
Lindsey had told him he was organizing for the Union or that Lindsey's union
activity had anything to do with his recommendation that Lindsey be discharged.
b. Bobby L. Brewer
Brewer was employed by Respondent as collector of accounts in August of 1959
and discharged on October 25, 1960. He was the employee who contacted Lynn
Davis and he signed an authorization card at the meeting at the B & B Cafe on Octo-
ber 14. On the following Monday he asked Ward what he thought a union could do
for the employees and Ward told him it was immaterial what he thought since he
was the office manager and had to be neutral . A week later Ward told him he would
have to fight the Union.
On October 24 Brewer heard that an antiunion petition 11 had been circulated
among the employees and asked Jackie Hester, secretary to Sayles, if he could see it.
Hester opened a file cabinet drawer and Brewer read the petition , which contained
the signatures and addresses of 26 employees who stated they were not in favor of
a union . Hester asked him to sign it and he refused . Later that day Sayles called
Brewer into his office, told him that he knew efforts were being made to organize the
employees , but said that he had seen a petition and believed that most of the employ-
ees were opposed to a union . Sayles asked him why he was in favor of one and
Brewer told him he believed in them . Sayles then took a folder from his drawer,
showed Brewer how many raises he had received since he joined the Union, and
asked him if he had not been fair . Sayles then told him he did not see why he
should put not only his ( Brewer's ) job but also Sayles' job and those of the other
employees in jeopardy . When he was asked (by the Trial Examiner ) what was
meant by jeopardy, Brewer said that Sayles asked what would happen if the freight
lines had to pay the Company the same amount it would cost them to collect their
bills-Sayles stated they would collect their own bills.
Ten minutes later Sayles called him back and said he did not understand why he
(Brewer ) was doing this to him and that he thought it was because he had not been
given the manager 's job when Ward was promoted . Brewer denied this was the
reason for his union activity.
About 1 o'clock the next afternoon (October 25 ) Ward summoned Brewer to the
office. Sayles was there and Ward went in with Brewer . Hester was also there
with a notebook and pencil . Sayles told Brewer he had betrayed his confidence
and undermined him by discussing his raises with other employees ,12 that he was
fired, and that there was no point in going back to his desk . He received his paycheck
and a severance check and left.
Although, as previously stated , Sayles had been informed that Brewer, in October,
was not always at his work desk and Frost had complained to Sayles about Brewer's
attempts to solicit his union membership , Sayles testified that solicitation was not the
reason for Brewer's discharge . He stated that on October 24 he thought Brewer
was disgruntled about the promotion of Ward ( the promotion had taken place in
June ) and that he explained the situation to Brewer and showed him how many (7)
raises he had received since his employment . He told Brewer at this time that all
wages and salaries were confidential . The next morning his secretary , Hester, told
him that if he heard any rumors about wages that she had nothing to do with it and
had not divulged the information . Bobbie Miller, another employee asked him, "How
come other people get raises and I didn 't get as many as somebody else?" Sayles
testified that both Hester and Miller identified Brewer as the employee who had dis-
cussed his raises with them and that when he charged Brewer with this at the dis-
charge interview Brewer only told him that he could not remember.13
11 General Counsel ' s Exhibit No 4
12 Brewer could not remember that he had ever been instructed not to discuss his wages
or rate of pay with other employees
1s Jackie Hester and Joy Jones both testified that they were sitting in a car in the
parking lot with Bobbie Miller after work on October 24 when Brewer came no and said
he had been in Sayles' office and that he had been told how many raises he had received
in a year and that he believed it was seven She said that one of the girls later remarked
that it was not fair Brewer testified that he could not remember mentioning his raises
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Peggy Sims
Peggy Sims was employed by the Respondent in December 1959 and discharged
on November 1, 1960. At the time of her discharge and for sometime prior thereto
she had been rebill and sightdraft clerk The reason given for her discharge was
repeated mistakes in the deposit of sightdrafts culminating with a mistake on the
Beechnut account.14 As sightdraft clerk it was her duty to check and total the
bills of Respondent's sightdraft accounts (there were about 21 or 22 of these), tape
them, and place them in envelopes for deposit in Respondent's bank as deposits
against collections. Her alleged mistakes occurred in placing a deposit total which
did not correspond to the total of the bills or in placing the wrong bills in the
deposit envelope. The testimony relating to her alleged errors was almost intermin-
able and most of it was unfathomable since her work passed through other hands
and some of the mistakes could have been made by others
Her union activity was not significant. She attended the meeting of the employees
at the B & B Cafe on October 14 and signed an authorization card at that time.
Prior to her discharge her name was found on a list of nine employees who sup-
posedly favored the Union.h The list was found by Ward in Bob Brewer's desk
when he was cleaning it out after Brewer's discharge. Although Ward denied that
he knew at the time of her discharge that Sims had favored the Union, he admitted
on cross-examination that he suspected that all the employees whose names ap-
peared on the list favored the Union, a not unreasonable suspicion. It must be
noted, however, that she also signed the petition which was submitted to Sayles on
October 24 disavowing the Union.
Sims was discharged at the close of business on November 1. She was told by
Ward, after she had checked out, that Sayles wanted to see her and she and Ward
went into his office. According to her testimony Sayles started to mention the tapes
on the sightdrafts when she interrupted and told Sayles that Ward had told her she
had been doing it correctly. Sayles then started to mention the Beechnut account
(which she knew was in error) and she told him two other employees had also
checked it. Sayles then told her that she was not cut out for that type of work but
that he would give her a recommendation when she applied for another job. There
was no discussion of her other alleged mistakes at the time she was fired.
B. Conclusions
1. The credibility issue
There is perhaps no more difficult or disagreeable task for a Trial Examiner than
that of determining an issue of credibility between two sets of witnesses, both of
whom appear honest and truthful, who give each other the lie direct. That is the
circumstance in this case and credibility is the issue upon which the case must turn.
Since I have, in general, credited the General Counsel's witnesses against the Re-
spondent's witnesses where the testimony has been in conflict some explanation is
in order
All of the witnesses called by the General Counsel were young clerical employees
quite obviously possessed of what is commonly referred to as good family back-
grounds. They were equally obviously inexperienced in courtroom procedures and
the ordeals of the witness stand. Yet, subject to vigorous, relentless , and searching
cross-examination by an experienced and highly competent trial lawyer, they were
unfaltering and unconfused in the substantial portions of their testimony.is I have
placed a great reliance on the testimony of employees Martin and Tidwell, both of
whom were placed in the uncomfortable position of testifying adversely to the
interest of their employer in his presence. In so doing they directly contradicted
the testimony of Ward, their immediate supervisor, and I find it difficult to believe
but I find that this conversation took place substantially as described by Hester and
Jones Jones however, did testify that it was generally known and discussed when an
employee received a raise.
i4 The error in this account consisted of making the deposit for less than the tota'
amount of the bills enclosed The Beechnut error was called to the attention of Respond-
ent about a week or 10 days after the date of deposit, which was October 21, and Sims
was fired at the end of that pay period, November 1
11 Respondent's Exhibit No 11. It was a list which contained only first names and
was headed "Wants union " Ward was able to identify Peggy as Peggy Sims since she
was the only Peggy employed by Respondent
16 While Brewer pleaded lack of memory to that part of his conversation with Hester,
Miller, and Jones in which they charged him with divulging his pay increases, I have
credited the witness for the Respondent on this point
TRANSPORT CLEARINGS, INC. 617
that they would contrive such conversations with him either indirectly to assist their
former fellow employees or to assist a union which they and the other employees
had repudiated . I can only find that Martin and Tidwell felt bound by an obligation
to tell the truth at whatever cost.
Bear, no longer employed by Respondent at the time of the hearing and pre-
sumably free from taint of self-inteerst , was clear, accurate , and specific in his
testimony and undamaged by cross-examination . I must, under these circumstances,
and from observation of his demeanor on the stand , credit him in full. While
Lindsey, Brewer, and Sims were not free from such taint as self -interest inevitably
attaches to testimony , I believe that each honestly endeavored and reasonably suc-
ceeded in keeping his testimony within the confines of the truth and I credit them
against both Sayles and Ward where there is conflict.
Having found that Ward was not telling the truth when he denied certain state-
ments attributed to him by Martin , Tidwell, and Bear, his similar denial of state-
ments allegedly made to Lindsey and Brewer is suspect . Ward , moreover, un-
equivocally denied any knowledge of union membership or activity on the part
of Sims on direct examination but admitted on cross that he knew her name ap-
peared on the list of employees who favored the Union . Similarly, with respect to
Lindsey, Ward denied on direct examination that he knew Lindsey was either a
member of the Union or engaged in union activity but admitted on cross that he
believed Lindsey had started the union movement. This sort of testimony is far
from forthright , to give it the benefit of an understatement , and rather clearly
establishes his indisposition toward making full disclosure.
The testimony of Sayles is not free from its own curious aspects . Nowhere is
there explanation of the curious circumstances under which both Lindsey and Brewer
were discharged. While neither the alleged deficiencies of Lindsey nor the breach
of discipline by Brewer were such as to require summary action , both were dis-
charged without notice or warning in the middle of the workday . This is not the
common practice , particularly with office workers who , for reasons unknown to me,
are generally treated with a greater solicitude than shop employees . There is, too,
Sayles' statement to Lindsey that he was hiring an employee with freight collection
experience to replace him when Lindsey 's replacement was in fact unknown. Ques-
tioned with respect to his interrogation of Bear and statements attributed to him
by Bear, Sayles gave a blanket denial . So, too, when he was questioned regarding
his knowledge of Lindsey's union activity at the time of discharge . I do not dis-
credit any witness on the ground that his response to a charge is a blanket denial.
It is, however, more difficult for a witness to fabricate false facts and circumstances
and thereafter keep his testimony free from inconsistency and contradiction as well
as disproof than it is to assert a disavowal . Except for chronic and compulsive
liars, there is a psychological barrier to fabricating false and imaginary facts which
damage another party even after hostility has been established and that barrier is
greater, certainly, than that to denial of misfeasance or misconduct when charged.
No rule can be established that a greater probability of truth lies with the indicter
than with the indicted but, when no explanation accompanies the denial , I do not
think that this factor can entirely be ignored. In the instant case I find no need for
reliance on this factor, even though I concede its existence.
2. Interference, restrain, and coercion
On the basis of the foregoing findings of facts and resolutions of credibility, I
find that the Respondent violated Section 8(a)(1) of the Act by: (a) Interrogation
of employees Martin and Tidwell as to their union activity by Ward and interroga-
tion of employee Bear as to his own union activity and that of employees Hester
and Jones by Sayles; 17 (b) threats by Ward to employees Martin and Tidwell that
the plant could close down and girls would be walking the streets if it went union
and to Bear that the plant would close; and (c) statement by Sayles to Brewer that
he was placing all of their jobs in jeopardy by engaging in union activity.
3. The discharge of Lindsey
Although Lindsey was a new employee and had only been handling delinquent
accounts for a little more than 3 months at the time of his discharge, I find his
17 Apart from any other evidence of interference, restraint, or coercion on the part of
Respondent, I find that the interrogation of these employees constituted a violation of
Section 8(a) (1) since it was neither for a proper purpose nor encompassed any of the
safeguards which would bring it within the Blue Flash rule See Petroleum Carrier
Corporation of Tampa, Inc, 126 NLRB 1031.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge was in violation of Section 8(a)(3) of the Act. I credit his statement
that he had received no prior warnings or reprimands from Ward at the time of
his discharge and I also credit the testimony of Martin, who reviewed his balance
sheets, that he had succeeded in reducing the accounts in arrears. Apart from
this there is the admission of Ward (after a prior denial) that he suspected that
Lindsey was the original leader of the union movement; Lindsey's statement to
Ward that he was as guilty as Brewer of instigating the Union, the fact that Lindsey
had offered to resign during a dispute with Sayles during September (at a time
during which it was alleged his work was unsatisfactory) and the offer was not
accepted; and the summary and abrupt discharge on the first working day following
the first union meeting, a discharge effected during the middle of the day and at
the beginning of a new pay period.is Not entirely without significance is Sayles'
statement to Lindsey at the time of discharge that he was hiring an employee with
freight line experience although Lindsey's replacement had neither been selected
nor interviewed at the time. I can see no reason for such fabrication during a dis-
charge interview except to assist in concealing the real motive of discharge.
I find, therefore, that the discharge of Lindsey violated Section 8(a)(3) of the
Act.
4. The discharge of Brewer
Brewer, like Lindsey, was a collector of delinquent accounts. Although he had
been employed by Respondent for little more than a year, he had received seven
pay increases and no claim was made that he was not competent. The sole reason
alleged for his discharge was his breach of a company rule against divulging his
salary increases to other employees. (I have already found that he did divulge
the number of his increases to employees Hester, Jones, and Miller on October 24.)
Sayles testified that not only was there a standing rule against such revelation but
that he had specifically warned Brewer about it in his discussion with Brewer that
same day. I find that the reason asserted by Sayles for the discharge was pretextuous,
however, and that he was in fact discharged because he was and was suspected to
be the leader and instigator of union organization. Both Sayles and Ward testified
that they believed Brewer was the leader of the movement and the belief of both
that union organization would not serve the Company's interests has been estab-
lished. It was on the morning of October 24, the day before his discharge, that
Brewer asked to see the petition of the employees disavowing the Union and was
then asked by Hester, secretary to Sayles, if he wanted to sign it. He refused and
shortly thereafter he was called into Sayles' office, asked why he favored a union,
and was told that he was placing all jobs in jeopardy. (Despite Sayles' denial, I
credit Brewer's testimony.) In neither this nor in the later conversation with
Sayles on that day did Brewer disclaim his union sympathy. The circumstances
under which he was discharged the next day were, as in the case of Lindsey, unusual.
Up to this time the Company had not a single charge it could levy against Brewer,
either for his work or his conduct. He was, nevertheless, not only precipitately
discharged in the middle of a workday (the day was Tuesday) but Hester was
present with a notebook and pencil to record the conversation. At the end of it-
and it was brief-Brewer was given his pay and severance checks and told that it
was not necessary for him to go back to his desk Measuring, the severity of the
punishment and its peculiar timing and circumstances against the gravity of the
offense, T find the presumption that it was falsely devised to conceal the discrimina-
tory motive irresistible if not irrefutable.
Fortifying this conclusion is the evidence relating to the publication and enforce-
ment of the rule. I credit the testimony of Bear that he was never informed of the
rule and the testimony of Lindsey that he could not remember having heard of
such a rule Jones, the Respondent's witness, testified that there was such a rule
but that raises became known throughout the office. Frost, a new employee who
certainly should have known of such a vile if it was standard practice to instruct
employees in it, told Bear that he was making more money than Bear and Bear
went to Sayles to inquire why. Yet neither a reprimand nor other punishment was
inflicted on Frost. Frost, however, was the employee who had told Sayles that he
wanted no part of any union when he was employed and who had complained of
Brewer's efforts to solicit him On the credited testimony of this case I can only
find that the rule was not given wide nublication that it was not strictly observed,
and that no punishment was ever inflicted for its breach except in the case of
Brewer
n"- the fnreeolnr reasons, I find that Brewer was discharged in violation of
Section 8(a) (3) of the Act
19 See Allied Distributing Corporation and Standard Optical Company , 130 NLRB 1348
TRANSPORT CLEARINGS, INC. 619
5. The discharge of Sims
The case of Sims differs. I believe it is impossible to determine from the testi-
mony herein whether Sims met the standards of performance required of her job.
Happily, that is not necessary since it is not the issue. I find the evidence insuffi-
cient to support the General Counsel's contention that she was discharged for union
activity, membership, or sympathy. Unlike Brewer and Lindsey, she was neither a
leader nor instigator of organization nor was she suspected of being either. She had
no conversations with Sayles or Ward regarding unions and the only evidence the
Company had that she even favored a union was the fact that her name appeared
on the list which Ward found in Brewer's desk. Yet her name also appeared on
the list of those employees who expressly stated they did not want a union. Even
more compelling is the logic of the circumstances at the time of her discharge.
Respondent had already discharged the two whom it suspected of union leadership;
all union activity had ceased with their discharge and all employees except Bear
had signed a petition of disclaimer. The union activity of Sims, on the record here-
in was negligible. Nothing could have been more fruitless than to have discharged
Sims for her former suspected union activity and I am unwilling to charge the
Respondent with such totally irrational conduct in the absence of more substantial
evidence than is found here.
I shall accordingly recommend that the complaint, insofar as it alleges that Sims
was discharged in violation of ection 8(a)(3) of the Act, be dismissed.
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 the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in certain
unfair labor practices, I shall recommend that it cease and desist therefrom and
take certain affirmative action to effectuate the purposes of the Act.
Having found that the Respondent terminated the employment of Bill Lindsey
on October 17, 1960, in violation of the Act, and terminated the employment of
Bobby Brewer on October 24, 1960, in violation of the Act, I shall recommend
that the Respondent offer each of them immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority and
other rights and privileges, and make him whole for any loss of earnings he may
have suffered by reason of the discrimination against him, by payment to him of
a sum of money equal to the amount of wages he would have earned subsequent
to the time of termination until the date of a proper offer of reinstatement, less his
net earnings from other employment in that period. Loss of pay shall be com-
puted in accordance with the formula and method prescribed in F. W. Woolworth
Company, 90 NLRB 289.
Because there is no evidence that the Respondent has committed other unfair
labor practices in the past or that the unfair labor practices found herein will be
committed in the future, the recommendations are accordingly confined
Upon the foregoing findings of fact, and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2(2) of the Act.
2. Office Employees International Union, Local 45, AFL-CIO, is a labor organ-
ization within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to hire and tenure of employment of employees,
thereby discouraging membership in a labor organization, the Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
4. Thereby and by interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed by Section 7 of the Act, as above found, Respondent
his engaged in and is engaging in unfair labor practices within the meaning of Section
8(a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
in enfSection 2(6) and (7) of the Act
[Recommendations omitted from publication.]