W. R. Grace & Co.

National Labor Relations Board - Board Decisions

Nov 20, 1968

173 N.L.R.B. 924 (N.L.R.B. 1968)

924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W. R. Grace & Co ., Southbridge Plastics Division and
General Drivers, Salesmen & Warehousemen's
Local Union No. 984 , International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and
Helpers of America . Case 26-CA-3003
November 20, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On August 8, 1968, Trial Examiner George L.
Powell issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in certain alleged unfair labor practices and
recommending that the complaint herein be dismissed
in its entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General Counsel
filed exceptions to the Decision, together with a
supporting brief, and the Respondent filed an answer-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this 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 and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
charge filed on February 12, 1968.' Briefs of the Respondent
and the General Counsel were filed on June 5 and 10
respectively. Presented are questions of whether Respondent
made certain coercive statements to its over-the-road dnvers
which interfered with the exercise of their rights guaranteed
under Section 7 of the Act in violation of Section 8(axl) of
the Act, whether Respondent assisted, dominated and inter-
fered with the formation and organization of the Drivers
Committee of its over-the-road drivers at the Corinth, Missis-
sippi plant in violation of Section 8(a)(1) of the Act,' and
whether Respondent discharged over-the-road drivers Billy G.
Ross, Morris Whitfield, Vernon E. Short, Revis Eugene
Ledbetter, and Samuel Lee Dean in violation of Section
8(a)(3) of the Act. (29 U S.C. § 151, et seq).
Upon the entire record of evidence, my observation of the
witnesses as they testified and on due consideration of the
briefs filed by the Respondent and the General Counsel, I find
the General counsel has not established by a preponderance of
the evidence that Respondent violated Section 8(a)(1) and (3)
of the Act as alleged in the complaint, and will recommend
that the case be dismissed in its entirety.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. The Employer and the Labor Organization
I find that the allegations of paragraphs 2 and 3 of the
complaint respecting the nature and volume of business carried
on by Respondent, a corporation licensed to do business in the
State of Mississippi with an office and place of business at
Corinth, Mississippi, where it is engaged in the manufacture of
plastic products, are true and conclude therefrom that Re-
spondent at all times material herein was an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the
Act. There is no dispute as to this aspect of the case.
I also find and conclude that the Charging Party, (herein
referred to as the Union) General Drivers, Salesmen &
Warehousemen's Local Union No. 984, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, at all times material herein has been a labor
organization within the meaning of Section 2(5) of the Act,
another aspect of the case not controverted.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE L. POWELL,Trial Examiner: This case was tried
before me at Corinth , Mississippi , on May 1, 2, and 3, 1968,
and at New York, New York, on May 17, 1968. The complaint
issued March 29, 1968, based upon a charge and an amended
1 All dates are in the year 1968, unless otherwise noted.
2 Section 8(a)(2) of the Act was not alleged to have been violated . Union were the ballot choices
3 Stipulation of parties.
B. The Alleged Unfair Labor Practices
Union activity on behalf of over-the-road truckdrivers at
Respondent's Corinth, Mississippi plant began in July 1965
and continued extensively3 through the middle of February
1968. The Union lost a Board election on September 3, 1965 4
Following the election, Leo Frantzman, president of Respond-
ent, bargained with a committee of the drivers, herein called
the Drivers Committee, arriving at a collective-bargaining
agreement dated September 22, 1965. About November 1966
a successor committee was elected under the provisions of the
contract. In the fall of 1967 a new 2-year contract was entered
into beginning in November of 1967. On February 10, 1968, a
"piggy back" operation to the West Coast was put into effect
terminating the existing West Coast run, and the following
drivers were discharged on the dates following their names:
4 Case 26 -RC-2443 The Teamsters , the Rubber Workers, and No
173 NLRB No. 134
W R. GRACE & CO.
Billy Ross-February 10, 1968; Morris Whitfield-February
10, 1968, Vernon E. Short-February 11, 1968, Revis Ledbet-
ter-February 11, 1968; and Samuel Dean-February 13, 1968.
The position of the General Counsel is that (1) Respondent
prior to October 1967 and thereafter has assisted, dominated,
and interfered with the formation and administration of the
Drivers Committee at its Corinth plant, (2) threatened its
employees with discharge as a result of their supporting or
assisting the Union, (3) created the impression of surveillance
of its employees' union activities; and (4) discharged the
above-named employees because they joined or assisted the
Union.5 These points will be taken up in order
1. The Drivers Committee
Contrary to the allegations of the General Counsel in the
complaint and in his brief, the drivers themselves formed the
Dnvers Committee to solve their own problems. The General
Counsel's own witness Revis Ledbetter, testified as follows:
Q. "Did the company tell you who had to be on the
committee, or anything like that?" A. "No, sir." Q. "So, the
people who were elected were elected by the drivers, is that
true?" A. "That's right." Q. "Did you understand that a
Drivers Committee had to be formed, or at that time did the
drivers want the committee to be formed?" A. "Wasn't
nobody said it had to be done We was trying to do what we
thought was best to solve our problem." And it is noted that
the first Drivers Committee was formed and its successor
chosen more than six months before the first charge was filed
on February 12, 1968. Accordingly, Section 10(b) of the Act
bars a complaint based on the establishment of the Drivers
Committee or its successor.6
Also contrary to the allegation of the General Counsel that
Respondent's Traffic Manager, Tom Carter, was elected Re-
cording Secretary for the Dnvers Committee in about Novem-
ber 1966 (again this date is before the cutoff date of August
12, 1967 under Section 10(b)) the credited record is that he
only recorded what took place in meetings between manage-
ment and the Drivers Committee, and was not an officer of the
Drivers Committee Carter's credited testimony, relied on by
the General Counsel in his brief to prove his allegation, is "I
recorded the minutes of the meetings between the drivers and
management . " Carl McClain corroborated this testimony,
and said Carter was not an officer of the Drivers Committee.
Ledbetter's and Short's testimony on this point is not credited
as it is an erroneous conclusion.
The first Drivers Committee was composed of Vernon
Short, Revis Ledbetter and James Wilson. The second Drivers
Committee, elected in November 1966, was composed of
drivers Jack Luther, Earl McClain, and Billy Ross.
5 The complaint alleged the alternative "or engaged in other union
activities or concerted activities for the purpose of collective bargaining
or other mutual aid and protection " but no evidence as to this was
adduced
6 Section 10 (b) of the Act provides
Whenever it is charged that any person has engaged in or is
engaging in any such unfair labor practice, the Board , or any agent
or agency designated by the Board for such purposes , shall have
power to issue and cause to be served upon such person a complaint
stating the charges in that respect, and containing a notice of hearing
before the Board or a member thereof , or before a designated agent
or agency , at a place therein fixed, not less than-five days after the
925
The demands of the drivers in negotiating the second
contract by the Drivers Committee were written up by drivers
James Wilson and Revis Ledbetter, typed by Wilson's wife, and
turned over to Jack Luther by Wilson. Luther and Earl
McClain then presented the drivers' demands to Respondent's
team of negotiators, Traffic Manager Tom Carter, Director of
Industrial Relations Frank A. Robinson, and Director of
Operations Ira Frantzman. The other committee member,
Ross, was absent being out on the road. According to Luther,
Ross was scheduled to be at one of the three to five
negotiation sessions but didn't return from his trip in time.
Nevertheless all three members of the Drivers Committee
signed the consummated contract for the Drivers Committee
with Ross signing it in Luther's presence. There is no question
but that the drivers got a contract satisfactory to them.7
Earl McClain, credibly testified that while they were
negotiating the last contract there was a discussion about the
discontinuance of the West Coast run. Carter told them the run
would be discontinued and the freight hauled by "piggy-back"
just as soon as Respondent could handle the billing at Corinth.
Ways to save the West Coast run such as using double bottoms
and dry boxes, were also discussed and explored. Carter told
them that some drivers would have to be let go if they
abolished the West Coast run but the best qualified drivers
would be kept. This is based on the credited testimony of
McClain, Luther, and Carter. I find from the above that the
General Counsel has not established the allegation in the
complaint that Respondent has assisted, dominated, and
interferred with the formation and administration of the Drivers
Committee and will recommend this allegation be dismissed.
2. The alleged threats of discharge and other
8(a)(l) violations
Billy Ross testified that in November 1967 he asked Carter
why the yardman couldn't spot the trailors so the drivers
wouldn't get dirty in the rain before they went out on a trip.
Carter told him the yardman was a union man and had to be
paid by the hour whereas it did not cost anything to have the
drivers do their own spotting. Ross then told him, "if I could
sway anyone, there'd be a union in there. Carter then said,
.. he hoped to hell 1 could get in the Union,' that `I'd be
easier to get rid of."' That was all there was to that
conversation.
I do not believe this conversation as quoted took place
unless it did so as a joke. Ross is not a credible witness, as will
be detailed later, and he did not appear to be telling the truth
when testifying. I find he was so biased as to his own case that
his testimony cannot be credited unless corroborated by a
credible witness His above statement on its face does not
serving of said complaint Provided, that no complaint shall issue
based upon any unfair labor practice occurring more than six
months prior to the filing of the charge with the Board and the
service of a copy thereof upon the person against whom such charge
is made, unless the person aggrieved thereby was prevented from
filing such charge by reason of service in the armed forces, in which
event the six-month period shall be computed from the day of his
discharge Any such complaint may be amended by the member,
agent , or agency conducting the hearing or the Board in its
discretion at any time prior to the issuance of an order based
thereon
7 Wilson would have preferred a penny more per mile.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
make sense or else it is a joke There is no evidence that Carter
wanted to get rid of Ross in November 1967 so there was
nothing which could be made " easier "
Another point of 8(a)(1) conduct relied on by the General
Counsel was that Ledbetter testified that in January 1968 Tom
Carter questioned him about signing a union card. The actual
testimony as to this point follows-
THE WITNESS [Ledbetter] Well, actually, Earl
McClain asked Tom at the time did he know whether or not
there had been a majority of the Union cards that had been
signed.
THE EXAMINER Then what did Tom say?
THE WITNESS Tom said he did not know. I believe he
said that he wasn't sure about it, if a majority had been
signed , and that was when he asked me had I signed one and
I told him I had.
Then Earl McClain said that he had signed one previous,
but it had been about a year or so beforehand and he didn't
believe it was any good. Then Carter asked me if I knew
whether it was good or not, and I said, "Well, I don't
know."
Earl McClain, Tom Carter, and Ledbetter (who was on the
first Drivers Committee) were all involved in this conversation
and McClain had instigated it. Ledbetter admitted that union
matters were a common topic of conversation with Carter and
especially so as far as Earl McClain was concerned. McClain
even asked Carter how he could get his card back Carter
referred him to the Union. Ledbetter got three cards signed (he
received them from Short) in July 1967 and when the signers
came to him with doubts of whether they really wanted to go
through with the Union he burned the cards and so advised
Short. There is nothing here to spell out interference, restraint
or coercion of the rights of these drivers to engage in union
activities considering who was involved, where they were, who
started the conversation, what was said and how it ended.
Accordingly, I find no violation of Section 8(a)(l) in any of
the above and will recommend this allegation of the complaint
be dismissed.8
3. The alleged impression of surveillance
The final 8(a)(1) allegation relied on by the General
Counsel is that Ross also testified that on February 9, 1968,
the day before his discharge, Company President Leo Frantz-
man told him he knew union cards were circulating and then
he asked Ross who was doing it. When Ross refused to tell,
Frantzman said he knew Short was one of those passing out
cards Frantzman then warned that if union activity did not
stop he would discharge those involved. He stated he had
gotten rid of one employee and that he would do it again. Ross
testified that this all happened while he was in the Respond-
ent's New Jersey office to borrow money to return to Corinth.
He had just been released from a week's stay in the hospital.
Leo Frantzman's testimony on this point is credited as
against Ross. It follows:
Q. Mr. Frantzman, I will direct your attention to on or
about February the 8th. 1968. Did you have occasion to
have a conversation with Billy Ross at that time?
A. Yes.
Q. Where did this conversation take place?
A. At the Southbridge Plastics Clifton, New Jersey,
plant.
Q. Do you recall who started the conversation?
A. Billy Ross
Q To the best of your knowledge and memory, can you
recall what you said to Mr. Ross and what he said to you?
A. Billy Ross had been in the hospital in New York or
New Jersey, I don't know which, and I asked him how he
felt and was he going back to Corinth, and he said that he
was. I asked him if the company had given him a ticket to
go back and he said yes. He said, "Could you loan me a
hundred dollars until I get straightened out," and I said, "I
will be glad to "
At that point I took a hundred dollars out of my pocket
and gave it to Billy Ross He said, "I'll pay you back when I
have it," and I said, "That's okay."
He then said, "Can I talk to you a moment?" and I said,
"Yes. Come on into the private office " We were both in a
private office and he told me that he was having trouble
with Carter, Tom Carter, and I said, "What kind of
trouble." He said, "Well, he isn't treating us right." I said,
"This is not my jurisdiction. Why don't you take it up with
Ira," who is my son, who runs the Southbridge plant. I said,
"Go up to him and talk to him about these grievances, and
see what he can do." That is what I said to him.
Q. Was anything else said?
A. Billy said something, that he wasn't to blame if I
heard anything about a Union and I said, "Billy, I'm not
interested in anything about a union. Take up your
problems with Ira down in Corinth."
Q. Was that the extent of the conversation
A. That was the extent of the conversation.
Based on Leo Frantzman's demeanor, plus the fact that
union activity had been going on for about three years with no
interference, plus the fact that Respondent had recently
negotiated the second contract with the Drivers Committee
good for 2 years, which contract would bar any new demands
for bargaining or any election of representation, plus the fact
that Respondent has contracts with other Unions and has
never been involved before in an unfair labor practice, and plus
the fact that Earl McClain and not Short was the most active in
circulating union cards (which McClain himself had earlier told
Carter), I credit the version told by Leo Frantzman and do not
credit Ross' story. Accordingly, I find no substantial evidence
that an impression of surveillance was created and will
recommend this allegation of the complaint be dismissed.
8 The United States Court of Appeals for the Ninth Circuit on July
10, 1968, in N.L R B v Hotel Conquistador, Inc, d/b/a Hotel
Tropicana, 398 F 2d 430, said, "We think the Second Circuit's opinion
in Bourne v N L.R B, 332 F 2d 47, 48 (C.A. 2, 1964) (per cunum),
provides helpful guidelines for dealing with the question of whether an
impermissable `interrogation ' has taken place The factors to be
considered , according to that opinion , include the following
"(1) The background , i e. is there a history of employer hostility
and discrimination9
"(2) The nature of the information sought, e g did the interrogator
appear to be seeking information on which to base taking action
against individual employees9
"(3) The identity of the questioner , i e. how high was he in the
company hierarchy9
"(4) Place and method of interrogation , e g was employee called
from work to the boss 's office9 Was there an atmosphere of
`unnatural formality'9
"(5) Truthfulness of the reply
A weighing of these considerations , found helpful by two circuit
courts, strengthens my conclusion that a violation of Section 8(a)(i) of
the Act has not been made out by the General Counsel.
W. R. GRACE & CO
4. The alleged discriminatory discharges
In January and February 1968 Respondent made several
economic changes in its plant operation. It terminated four
staff employees and put in a program in the laminating
department whereby "we effectively lowered the number of
people by 18," according to Ira Frantzman's credited and
uncontroverted testimony. This effected a savings of some
$130,000 per year
By that time (January), Respondent had installed a com-
puter for billing and had brought down to Corinth its order
processing department making it economically possible to use
"piggy-back" operations to the West Coast. Apparently the use
of a computer solved the problem of too much lead time
needed to fill the trailers in a "piggy-back" operation by hand
billing
An abundance of financial testimony was elicited which I
find established the fact that a "piggy-back" operation was
much more economical than Respondent's West Coast runs by
tractor-trailor once the problem of long lead time was
eliminated. The abolishment of the West Coast run is not an
issue in any event.
On February 10, 1968, Ira Frantzman had been involved in
labor contract negotiations with another union, the United
Rubber Workers, in a unit of most of the Respondent's plant
employees 9 This contract was going to involve and did involve
an increased overhead expense It was at this point in time
when Traffic Manager Carter came to see Ira Frantzman on an
ugent matter. He wanted to discharge Morris Whitfield because
he had shown up in excess of 24 hours late on a delivery with
no reasonable excuse 1 0 Ira Frantzman gave his permission to
discharge Whitfield and asked Carter if it was time to eliminate
the West Coast run by beginning the "piggy-back" operation.
Carter told him in effect that it was time to begin but this
would result in laying off some drivers. Frantzman asked how
many drivers would be involved in a layoff and was told it
would be four or more Ira Frantzman then told Carter to
select the names and make his recommendation the following
morning
The following morning, Carter gave Ira Frantzman a list of
four men, in addition to Whitfield, who would have to be let
go. And "piggy-back" operations were begun. Seniority was
not used in the selection. Seniority had been used in the past
only in the assignment of new trucks. Carter credibly testified
that he examined the file folders of all of the over-the-road
truckdrivers and decided to retain what he thought were the
best men. This is what he had told the drivers the previous fall
he would do when the West Coast run was eliminated and the
"piggy-back" operation started. Ira Frantzman agreed with the
list of men to be selected, and the men were laid off. An exit
interview in each case was had with Carter and Director of
Industrial Relations Frank Robinson. In addition to Whitfield
who was fired on February 10, 1968, for running late without
9 As evidence of Respondent 's good faith in dealing with unions in
general , there is uncontroverted evidence that this union had been in the
plant some three and a half years . It had just asked to include in the
unit laboratory personnel who had been excluded in the old contract.
Respondent agreed to the inclusion upon a showing of cards Another
union, the Printers Association, had come down from Massachusetts
when the plant relocated in Corinth some 6 years earlier, and has been
there ever since.
927
a reasonable excuse, and whose only relation to the other men
was that the discharges were all in the same period of time,
Respondent laid off Billy Ross on February 10, 1968, Revis
Ledbetter and Vernon Short on February 11, 1968, and
Samuel Dean when he returned from a delivery on February
13, 1968 At the exit interviews of these latter four each was
told he was discharged because the West Coast nin had been
eliminated. Each was given 3 weeks severance pay.
Since February 1968 no West Coast runs have been made as
before, no new over-the-road drivers have been hired, and none
of the drivers are driving more miles than before
Union Activities of the Drivers Other Than
the Named Discriminatees
The parties stipulated "that there's been extensive union
activities among the drivers for the last three years."
The union activities of the five-named discriminatees will be
set out below, as each is discussed with the reasons given for
their selection to be terminated. In order to compare union
activities of all the drivers the union activities of the drivers
retained are as follows
Earl McClain credibly testified that he was the most active
in trying to secure union representation for the drivers in
1965, which effort failed in the election with the Rubber
Workers and No Union on the ballot, (Case 26-RC-2443). He
told Carter of his activities after the election. He had been a
Teamsters Union member for 6 years and at the trial he held a
withdrawal card. He had signed two union authorization cards
since in the Respondent's employ He was a member of the
Drivers Committee in 1968 and helped negotiate the last
collective-bargaining contract.
Jack Luther, had been a member of the Teamsters Union
and had signed one union authorization card since an
employee of Respondent. He was also a member of the Drivers
Committee.
James Wilson, had been a member of the Teamsters Union
for 6 years with a Memphis, Tennessee, local.
Edgar Thom was a member of the Teamsters Union in
Detroit, Michigan, for 2 years and had signed a union
authorization card since an employee of Respondent.
Johnny B. Jones signed three union authorization cards
while in Respondent's employ. He signed one in 1965 and two
in 1967.
Albert Smith engaged in no union activities insofar as the
record disclosed.
Donald Casey signed three union cards while an employee
of Respondent, and gave a card to Whitfield to sign when
Whitfield came to his house after Whitfield's discharge on
February 10, 1968.
Reeder Maxedon had been a member of the Teamsters
Union for about 15 or 16 years.
10 There is no controversy that this was not unusual as Earl
McClain's nephew, Morrie McClain had been discharged some time
previously because he had been late with no excuse Further, although
Carter had the right to hire and fire, he found it reasonable to touch
base with Ira Frantzman , the man in charge of the Corinth operation,
and who was the son of the President Leo Frantzman.
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Driver Selection
Before selecting drivers for discharge, Carter figured that a
total of only five dnvers would have to be let out although the
elimination of the West Coast run involved six dnvers. The
extra driver was needed and was used on the other runs.
Whitfield, discharged for cause, was counted in the five to be
terminated.
Samuel Dean was selected for discharge because- (1) he had
been discharged and rehired previously for missing a truck in
El Paso; (2) He had been suspended once for being late for a
truck at El Paso, (3) He had been running late and calling in
with bad excuses such as that it took sixteen hours to fix a flat
and on one occasion he told Carter he was late because he was
a witness to a case of arson in Georgia and had to stay there at
the request of the police. However, Carter checked out the
story with the police and could not find anyone who knew
anything about it. Dean admitted that in his exit interview,
Carter told him he had drivers who could do a better job than
he was doing.
According to Dean, his union activities consisted of signing
several Union cards. He signed one in the summer of 1965, one
in the summer of 1967 and one in January 1968 which he got
from Billy Ross. On February 9, 1968, according to Dean,
while he was on a run in Chicago he complained to a Mr. Casey
about the hard way Carter was running him. He mentioned
that, "we was going to have to get the Union in, or something
in, or we'd all get run off." This was overheard by a Mrs. Parr
She asked about his statement and he told her, "that it looked
like we was going to have to get the union in for protection."
Later on he talked to Carter on the telephone for further
instructions, as was the usual practice. Following his conversa-
tion he overheard Mrs Parr telling Carter she had heard "they
was trying to get the Union in" and she didn't want it as it
would interfere with the way they were running the freight."
At no time did Dean say he was active in the Union nor did
Mrs Parr tell Carter of Dean's actions or even beliefs-only
that "they" were trying to get the Union in. This is insufficient
evidence to sustain the burden of proving that Dean was
selected for layoff for his union activities in order to
discourage union activities, the gravamen of the Section
8(a)(3) complaint, and I will recommend dismissal of the
complaint as to Dean.
Revis Ledbetter was selected for discharge because (1) he
had had a serious accident, (2) on three occasions he had
problems with personnel at other installations of the Respond-
ent On one of these occasions, Bob Steels, a vice president of
the Company in California, called and reported that Ledbetter
had gotten into a hassle over unloading a trailer; (3) he went
over the heads of the Corinth plant officials to New York, and
(4) in Carter's opinion he was quarrelsome, bossy and caused
friction with other drivers
Ledbetter testified that he had signed two union cards while
in Respondent's employ, the last one being signed in Septem-
ber, 1967. He was a Union observer in the election in 1965. He
was elected to the first Drivers Committee along with Short
and Wilson, as noted above, and participated in bargaining for
the first contract. Also as noted above, he erroneously believed
Carter had been elected to the Drivers Committee His
testimony with respect to an alleged conversation in January
1968 with Carter is set out above in the Section 8(a)(l) aspect
of the case. It has already been noted that the drivers' demands
leading toward the second contract were written up by
Ledbetter and Wilson. Ledbetter's activity of signing up three
drivers in July 1967 and then burning up their cards when they
expressed doubt of wanting the Union has been detailed above.
I find that the General Counsel has not established by a
preponderance of evidence that Ledbetter was selected for
discharge because of his union activities in order to discourage
union activities and will recommend the complaint be dis-
missed as to Ledbetter.
Billy Ross was selected for termination, according to the
credited testimony of Carter, because (1) he went over the
heads of Respondent's officials in Corinth and complained to
President Leo Frantzman in New York, (2) he would borrow
money at truck stops which Respondent would cover, (3) he
was continually in debt to Respondent up to $500 or $600;
(4) he was instructed to properly file his logs and was
reprimanded continually about not keeping proper logs as
required by law, (5) he was quarrelsome, and (6) he was
stripped of his seniority once by failing to have in his
possession a proper commercial drivers license
Ross' union activities as to signing union cards cannot be
determined due to his lack of credibility. He testified that
Thurston Little (not a discriminatee) gave him a card to sign in
1968 ' 2 He was elected to the second Drivers Committee with
Earl McClain and Jack Luther, and, as stated above he never
attended a contract negotiation meeting but did join McClain
and Luther in signing the second collective bargaining contract,
although, according to him, he was not consulted on its terms
before it had been agreed to
Ross gave testimony that was contradictory, self-
impeaching, and inconsistent and, as noted above, appeared to
be too biased to be credited unless corroborated by a credible
witness Some instances of his unreliability are set out as
follows
As to the number and dates of the union cards he signed, he
testified on direct examination.
Q. Did you ever sign a union card while you worked at
Southbridge9
A. Yes, sir.
Q. How many cards did you sign9
A. Three [Emphasis supplied.]
Q. When was the first time you signed a card?
A. It was in the summer of '65. [Emphasis supplied.]
Q. Do you recall who gave you the union card at that
time to sign?
A. The second one?
Q Yes, sir.
A Gene Ledbetter
Q. When was the third time you signed a union card?
A. The 22nd day of January of `68.
But on cross examination Ross testified
Q. Mr. Ross, I'll hand you an affidavit. Is this your
signature, sir?
A Yes, sir.
Q Dated February 1968, 12th day of February 1968?
A. Yes, sir.
i i Carter in testifying about the same incident , credibly testified he
told Mrs Parr not to worry about it because the drivers were always
talking about the Union
12 He also stated a few days earlier Short had given him a card but
what happened to it is unknown
W R. GRACE & CO.
Q. Given before the National Labor Relations Attorney
Clark, is that correct?
A. Yes, sir.
Q. Do you recall this affidavit, sir?
A. I imagine I do, yes, sir.
Q. At the time you gave this affidavit, to the best of
your knowledge and belief, was it true and correct?
A Yes, sir. I made oath to it.
Q. Do you recall saying in the affidavit that you had not
signed a union card until January 1968?
A. No, sir, I don't recall saying that.
Q. You don't recall saying that in your affidavit?
A. (nodded negatively.)
Q. I direct your attention to page 5 of the affidavit, and
correct me-I don't want to take it out of context , so I will
read the whole paragraph.
"I have reported herein the only time since 1965 when
any supervisor has talked to me about the union. No
supervisor has made any comment about my loyalty to
the company . I think the union first started passing out
its cards in the spring of 1967, but I didn't sign one until
January 1968, because I couldn't make up my mind."
Obviously this testimony is inconsistent.
As to the contract entered into and executed in 1967
between the Drivers Committee and the Respondent, Ross
testified on direct examination:
Q. Did you ever discuss the terms of this contract with
your fellow members of the committee , Luther and
McClain?
A No, sir
Q Did you ever discuss it with Carter or any other
member of management9
A. No, sir.
Ross shortly thereafter , yet still on direct examination,
testified that he told Carter
A. I told him that wasn't going to satisfy them.
Q. Whats that?
A. The contract. In other words, it wasn't what they
wanted.
Q. The terms of the contract was not what they
wanted 2 [Emphasis supplied.]
A. That's right. [ Emphasis supplied.]
It thus would appear that Ross did discuss the terms with
Carter , and this testimony is inconsistent.
As to his credibility, Ross testified that Mrs. Mannle
[spelled "Manley" in the record until the May 17, 1968
record.] was Leo Frantzman's private secretary in New York
and that he talked to her "sometimes as high as four or five
times a week for the past four years " Ross later testified that
she was a traffic manager. It would seem that if Ross had so
many conversations with Mannle that he would have known
that she was a clerk and not Leo Frantzman 's private secretary
Mrs Mannle and Leo Frantzman credibly testified that she was
a clerk and I so find Whether Ross was deliberately misleading
in his testimony at the trial (and probably to the General
Counsel in the investigation before the complaint issued) or he
jumped to an erroneous conclusion is not known.
Likewise Ross' testimony as to the events that transpired at
Casey's house with Whitfield on February 10, 1968, is not
credited . Ross testified that he went to Casey's house with
Whitfield to place a long distance call to a representative of the
Teamster 's in Memphis and he also got a union card for
929
Whitfield. As to Whitfield' s signing a card at Casey's house
Ross testified-
Q Did Mr. Whitfield fill out a card?
A. I didn't see one.
Q. You don't know anything about any cards being
signed at Mr Casey's house that morning? [Emphasis
supplied.]
A. No, sir. [Emphasis supplied.]
Mrs. Casey, a disinterested witness whom I credit, testified
that Ross was present and "standing right by" Whitfield as he
sat at her kitchen table and signed a union card.
Not crediting Ross, I find that the General Counsel has not
sustained his burden of proving that Ross was selected for
termination because of his Union activities in order to
discourage Union activities of employees and will recommend
the complaint as to Ross be dismissed.
Vernon Short was selected for discharge because ( 1) he was
a poor runner, in that he did not like to make runs, as
exemplified by the fact that for the year 1966, he was last in
earnings among the drivers , in 1967 he was 8th of 13, and for
the years 1966 and 1967 considered together , he stood next to
last in earnings , (2) he had had two serious accidents, one
which resulted in about $2,000 worth of damage done to a
trailer, and the other resulting in over $2,000 damage to a
tractor, and (3) because he went over the heads of officials at
the Corinth plant to New York currying favor.
Short testified that he passed out and signed union cards
before the election in 1965. As noted above he was on the first
Drivers Committee . He testified that he believed Carter had
been elected recording secretary of the Drivers Committee but
as noted above I find this conclusion is incorrect and that
Carter merely kept minutes of contract negotiations between
the Drivers Committee and Respondent and he was on the
Respondent 's team of negotiators
Short testified he again attempted to bring in the Teamsters
in May 1967.
I have been unable to find credible evidence that Respond-
ent, through its agents , showed any antiunion motive in its
conversations and actions. Indeed it appeared that union
activities of its employees was tolerated freely and dealings
with Unions were in good faith in the spirit of the Act. The
General Counsel has been unable to show disparate treatment
in the selection of Ross, Short, Ledbetter and Dean for
termination when the West Coast run was discontinued for
economic reasons. Accordingly, I find that the General
Counsel has failed to sustain his burden of proof that Short
was selected for termination because of his union activities to
discourage union activities among Respondent's employees and
will recommend the complaint as to Short be dismissed.
Lastly, I credit the testimony of Carter and Ira Frantzman
that Morris Whitfield was discharged because he was over 24
hours late on a run without a reasonable excuse This discharge
was for cause and was in keeping with the practice of
Respondent as witness the earlier discharge of Earl McClain's
nephew, Morrice McClain, for being late on a run without a
reasonable excuse. Whitfield's case had nothing to do with the
discontinuance of the West Coast run unless it can be said it
triggered the closing of the run because it did bring to Ira
Frantzman's mind the need to institute the money-saving
"piggy-back" operation with the additional resulting layoffs.
Accordingly, as in the above cases, the General Counsel has
not sustained his burden of proof that Whitfield was dis-
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged for his union activities to discourage employees' union
activities and I will recommend the allegation in the complaint
as to him be dismissed
General Counsel's Argument
The argument made by General Counsel in his brief before
me, largely assumes facts which I have not found to exist based
upon the above credibility determinations. But there is one
argument which merits comment.
General Counsel would have me put little stock in one of
the reasons given by Carter, i.e , going over his head in
contacting company officers in New York, as to why he
selected Short, Ledbetter and Ross. "If directly contacting
company officers in New York," argues the General Counsel,
"is a substantial breach of company protocol, it would appear
from the testimony that this has been encouraged by company
officers themselves." "Leo Frantzman testified that he gave
one of his drivers [Ross] a personal loan of $100 cash." "The
drivers had no compunction against discussing their grievances
with [Leo] Frantzman directly." "[Leo] Frantzman custom-
arily handled employee grievances himself, when possible, and
in the past has had personal contact with most of his 850 to
900 employees." Thus, I presume, the General Counsel
concludes that Respondent is somehow estopped from using
this as a reason because it was done with the big boss'
approval. The flaw in this argument which causes it to lack
merit is that Ira Frantzman gave Carter the authority to pick
those he thought could best be spared and he (Carter) was the
head over which they went. Further, personal reasons for
discharge belie union activity as a reason.
Finally, the General Counsel argues that inasmuch as Ross
spoke to Mrs. Mannle as many as four or five times a week she
was a "natural" for him to contact after his and Whitfield's
discharge to see if she could help them and because of her
proximity to Respondent's president who knew about the
13 Whitfield testified he listened in on an extention telephone to a
telephone conversation Ross had with Mrs . Mannle after the discharges
had taken place and that she told Ross the five men had been fired for
union activity in the Corinth plant it was reasonable to infer
that she knew the real reason for the discharges of the drivers
and she candidly admitted the real reason during the telephone
conversation with Ross and Whitfield.' 3
There Is No Merit To This Reasoning
Ross was very close to Leo Frantzman and if he wanted
help that is where he would have gone and not to Mrs. Mannle.
Apparently they got along well with Ross reporting Corinth
events to Leo Frantzman and borrowing money from him.
Also had the General Counsel investigated the case he would
have known that Mrs. Mannle was only a clerk doing routine
duties and not in any position of "proximity" to Leo
Frantzman as to enjoy his confidences.
CONCLUSIONS OF LAW
1. Respondent is, and during all times material has been, an
employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union, General Drivers, Salesmen and Warehouse-
men's Local Umon No. 984, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri-
ca, is a labor organization within the meaning of Section 2(5)
of the Act.
3. The General Counsel has failed to establish by a
preponderance of the evidence that Respondent has violated
Section 8(a)(1) and (3) of the Act as set forth in the
complaint.
RECOMMENDED ORDER
Accordingly I recommend that the complaint be dismissed
in its entirety.
their Union activity She denied this and I credit her over Whitfield and
Ross