Dixie Gas, Inc.

National Labor Relations Board - Board Decisions

Feb 14, 1962

135 N.L.R.B. 1051 (N.L.R.B. 1962)

DIXIE GAS, INC.' 1051
ception , was converted into an unfair labor practice strike. One striker was allowed
to work for either Conrad Manufacturing or Jarvis Manufacturing , beginning im-
mediately after the election , and some eight other strikers went to work for New
England Web on April 14 , and thereafter , all with the knowledge and consent of
the Union . These employees , at least the weavers, held seniority . One man,
Flannery, not a weaver , was let go at the insistence of the Union . As found else-
where herein, there is not sufficient proof in the way of substantial evidence in the
case to warrant a finding of the commission of unfair labor practices which taken
together with the circumstances causing the strike , would amount to unfair labor
practices on the part of the employer.
Affirmatively I find , that the Respondent , New England Web, Inc ., has not refused
to meet and bargain collectively with the Union at reasonable times, that the strike
beginning on March 9 was an economic strike and was not converted to an unfair
labor practice strike by reason of the commission of any unfair labor practice by
the Respondent , New England Web, or any of the other named Respondents, and
that the Respondent , New England Web, Inc., did not lock out br discharge any
employee for the reasons alleged in the complaint . I find that the General Counsel
has failed to sustain the burden of proof to show that the Respondent , New England
Web, Inc., or any other named Respondent , engaged in interference , restraint, or
coercion of its or their employees , as alleged in the complaint , or engaged in any
activity constituting unfair labor practices affecting commerce within the meaning
of Section 8(a)(1), (3 ), or (5) or Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondents , New England Web, Inc., National Webbing , Inc., Tri-Dye
Corporation , The Conrad Manufacturing Company, and Jarvis Manufacturing Cor-
poration are and have been engaged in commerce within the meaning of the Act.
2. Rhode Island Joint State Board , Textile Workers Union of America , AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
3. No one of the above-named Respondents have engaged in or is engaging in
unfair labor practices as alleged in the complaint.
[Recommendations omitted from publication.]
Dixie Gas , Inc. and General Drivers, Salesmen & Warehouse-
men's Local Union No. 984, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers of America
Dixie Gas, Inc. and General Drivers, Salesmen & Warehouse-
men's Local Union 984, I.B.T.C.W. & H. of America , Petitioner.
Cases Nos. 26-CA-960 and 26-RC-1457. February 14, 1962
DECISION, ORDER, AND CERTIFICATION OF
REPRESENTATIVES
On June 27, 1961, Trial Examiner Earl S. Bellman issued his
Intermediate Report in the above-entitled consolidated proceeding,
finding that the Respondent in Case No. 26-CA-962 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. Tie further
,found that the Respondent had not engaged in certain other unfair
135 NLRB No. 104.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices alleged in the complaint, and recommended dismissal
of such allegations.'
In Case No. 26-RC-1457, after a consent election in which 13 of the
21 valid ballots were cast for the Petitioner, the Charging Union in
the unfair labor practice case, objections were filed by the Employer,
the Respondent in the unfair labor practice case. When the Regional
Director issued his report finding the objections to have no merit,
the Respondent filed exceptions to this report with the Board. There-
after, in accord with a stipulation of the parties, the Board con-
solidated the unfair labor practice and representation cases, and di-
rected the Trial Examiner to pass upon certain objections, the Board
having found the remaining objections to have no merit. The Trial
Examiner found, on the basis of the evidence and his credibility reso-
lutions, that there was no merit in the objections before him.
Thereafter, the Respondent filed exceptions to the Intermediate
Report and a supporting brief.
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 Members
Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed 2 The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in these cases, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the modifications noted
below.'
ORDER
The Board adopts the Recommended Order of the Trial Examiner
with the following modifications :
1. Paragraph 1(b) is modified by deleting the word "legal."
2. Paragraph 2(e) is modified to read: "Notify the Regional Di-
rector for the Twenty-sixth Region, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply
herewith." 4
1 As no exceptions were filed to the Trial Examiner's recommended dismissal of the
allegations of the complaint pertaining to unlawful interrogation of employees , we hereby
adopt pro forma his findings , conclusions , and recommendations thereon.
2 The Respondent excepts to the Trial Examiner's denial of its motion to strike Charles
Melton's testimony . We do not pass upon that ruling as Melton's testimony is not relied
on In resolving any of the Issues in this proceeding
8 The Respondent requested the Board to overrule some of the Trial Examiner 's credi-
bility findings . However, it Is established Board policy not to overrule a Trial Examiner's
credibility findings unless they are clearly erroneous . Such a conclusion is not war-
ranted here. Standard Dry Wall Products , Inc, 91 NLRB 544, enfd . 188 F. 2d 362
(C.A. 3).
'The notice attached to the Intermediate Report is hereby modified as follows : ( 1) The
words "A Decision and Order" are substituted for the words "The Recommendations of
DIXIE GAS, `INC. 1053
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it
alleges that the Respondent interrogated employees in violation of
Section 8(a) (1) of the Act.
[The Board certified General Drivers, Salesmen & Warehousemen's
Local Union 984, I.B.T.C.W. & H. of America, as the designated
collective-bargaining representative of the employees of Dixie Gas,
Inc., in the unit described in the stipulation for certification upon con-
sent election approved by the Regional Director for the Twenty-
Sixth Region on July 27,19601]
a Trial Examiner" ; (2) 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"; (3) the word "legal" is deleted from the first sentence; (4) the,
following is added as the last paragraph: "Employees may communicate directly with the
Board's Regional Office (22 N. Front Street, Memphis, Tennessee; Telephone Number
Jackson 7-5451) if they have any question concerning this notice or compliance with its
provisions."
5 The unit is described therein as: "All truckdrivers employed at the Employer's ter-
minal located at Leland, Mississippi, excluding all other employees, mechanics and
mechanic helpers, watchmen and guards, and supervisors as defined in the Act."
INTERMEDIATE REPORT AND RECOMMENDED ORDER IN CASE NO.
26-CA-962 AND FINDINGS OF FACTS AND. LAW APPROPRIATE TO
CASE NO. 26-RC-1457
STATEMENT OF THE CASES
On June 28, 1960, the above-named Union filed a petition in Case No. 26-RC-
1457, herein referred to as the R case, seeking an election in a unit composed of all
the truckdrivers at the Leland, Mississippi, headquarters of Dixie Gas, Inc., herein
called either the Employer or the Respondent. A hearing on said petition was
scheduled for July 27,1 at which time the Union, as the Petitioner, and the Em-
ployer entered into a stipulation for certification upon consent election, which was
approved by the Regional Director for the Twenty-sixth Region, herein called the
Regional Director, on July 27. Pursuant thereto, an election was conducted on
August 26 at Leland, and there was duly issued that same day a tally of ballots,
which showed that of the 21 valid ballots cast by the 22 drivers eligible to vote,
13 votes were for the Union and 8 were against it. There were no void or chal-
lenged ballots.
On August 31, the Employer filed timely objections to the election.2 Said objec-
tions are stated in four numbered paragraphs, only the second and third of which
need concern us. The gravamen of objection No. 2 is that "coercion and intimida-
tion of certain employees" which affected their balloting resulted from "threats of
personal and bodily harm" which were made "following the date of execution of
the stipulation and prior" to the election. The gravamen of objection No. 3 is that
during this same period (July 27 to August 26), "agents of and persons acting for"
the Union placed the families of certain employees of the Employer under such
"fear of reprisal and bodily harm" that a majority of those eligible to vote were
"affected by fear, intimidation and coercion."
On September 23, while the above-noted objections and the CB case mentioned
in the margin were pending, the Union filed the charge in Case No. 26-CA-962,
herein called the C case, alleging discriminatory discharge of three truckdrivers on
September 21, and "other acts and conduct" since about July 1, 1960.
1 When the year is herein omitted, it will be understood to be 1900.
2 Early in September, the Employer also filed charges against the Union in Case No.
26- CB-138, herein called the CB case, alleging violations of Section 8(b) (1) (A) of the
Act by virtue of threats, intimidation, and coercion. This CB case and the R case were
Investigated jointly The Regional Director dismissed the charge in the CB case and'his
ruling, on appeal, was upheld by the General Counsel about mid-November 1960, thereby
closing the CB case.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October'7, the Regional Director issued his report on objections in which
he found that objections Nos. 1, 3, and 4 were without ment, essentially because
no evidence was produced to sustain them. By contrast, with respect to objection
No. 2, the Regional Director discussed the testimony of several witnesses, most of
which was contradicted, as to alleged occurrences prior to the election. He ulti-
mately found that objection No. 2 was also without merit, and recommended that
all of the objections be overruled and that the Union be certified. On October 13,
the Employer filed exceptions to report.on objections, and a memorandum in sup-
port thereof.
On November 10, 1960, the General Counsel, by the Regional Director, issued
and duly served upon the Respondent and the Union the complaint and notice of
hearing in Case No. 26-CA-962, alleging violations of Section 8(a)(1) and (3)
of the Act. With respect to the unfair labor practices, the complaint, as subse-
quently amended in minor respects, alleges that the Respondent: (1) About July 27,
by its agent, Vice President Curry Holland, "interrogated its employees concerning
their union membership and activities"; (2) about August 27, by Vice President
Holland, "punished and penalized its employees by withdrawing working conditions
and privileges" which they had formerly enjoyed and "by imposing upon them more
-stringent working conditions"; and (3) about September 21, discriminatorily dis-
,charged and thereafter refused to reinstate Hulet C. Burns, Joe T. Phillips, and
L. Ray McDaniel.
The Respondent, by its answer to the amended complaint, admitted some allega-
tions, including discharge and failure to reinstate the three named employees but
denied all allegations as to unfair labor practices.
On November 30, the Regional Director issued his supplemental report on objec-
tions, in which he further discussed objections Nos. 2 and 3; concluded that the
facts thus discussed "do not raise any substantial or material issues affecting the
results of the election"; and again recommended that the Union be certified by the
Board . On December 8, the Employer in the R case, who was by then engaged
as the Respondent in the hearing in the C case to which we next turn , filed its excep-
tion to supplemental report on objections with the Board.
The hearing in Case No. 26-CA-962, during which all parties were represented
and were accorded full opportunity to participate, to argue orally, and to file briefs,
was held before Earl S. Bellman, the duly designated Trial Examiner, in Greenville,
Mississippi , on December 6, 7, 8, 9, 12, 13, and 14, 1960. At the outset, a motion
by the Respondent for the separation of witnesses was granted over objection.- On
the first day of the hearing, during cross-examination of one of the dischargees
called as the General Counsel's first witness, motions by the Respondent to amend
its answer , which then gave no explanation for the discharges, were granted over
objections by the General Counsel and the Union. As thus amended, first orally on
the record and then by the filing of a supplemental answer, the answer alleges that
Bums, McDaniel, and Phillips were discharged "because of their misconduct and
because of various and sundry threats made to employees" of the Respondent,
commencing about July 15 and continuing thereafter until they were discharged;
that said threats included bodily harm, such as "being run off the road and being
killed," and the use of "violence and damage to equipment to force employees to
terminate their employment"; that McDaniel threatened to "clean out the shop";
and that coercive methods used included "extortion" by threatening "personal em=
barrassment" through the disclosure of "a picture taken of an employee."
Thereafter, throughout what proved to be a very closely litigated hearing, during
which numerous procedural and evidentiary problems developed, a major concern
of mine was to keep the evidence confined to the issues framed by the pleadings in
the C case, and to avoid,any collateral litigation of R case issues, which were then
pending before the Board and obviously were not before me. In fact, during the
hearing, I had no specific information as to the above-explained issues in the R case,
although the strenuously pressed contentions of the parties as to numerous evi-
dentiary and procedural matters unmistakably indicated that they were at least
similar to those put in issue on the first day of the hearing by the above-related
amendments of the Respondent's answer.
At the close of the heanng, the parties waived oral argument in favor of filing.
briefs. I thereupon asked on the record a number of questions, later-alluded-to,
some of which were then answered, while others were reserved for the briefs. Also
a motion by the General Counsel "to,have the pleadings amended to conform to
the evidence," which after argument thereon I interpreted as going only "to minor
variations in formal matters, without adding or subtracting from the substantial
allegations ," was granted over objection by the Respondent.
DIXIE GAS, INC. 1055
- Pursuant to extension : of time for filing to February 6, 1961, duly granted by the
Chief Trial Examiner , able briefs, which have , been carefully considered , were filed
in the C case by the Respondent and by the General Counsel.
On February 17, 1961, the Board issued an order directing hearing in Case No. 26-
RC-1457 because the Board was "of -the opinion that certain material and substantial
issues had been raised in connection with Objections 2 and 3 " which could best be
resolved by a hearing.3 It accordingly referred the matter to the Regional Director
for the purpose of conducting such a hearing.
- On March 21, 1961 , the Regional Director approved , in Case No . 26-RC-1457, a
"Stipulation to Consolidate Cases," signed by the Employer and the Petitioner,
whereby it was agreed that "in order to effectuate the purposes " of the Act and "to
avoid unnecessary costs and delays," the proceeding in the R case "may be consoli-
dated with" the proceeding in the C case ; that "all parties hereto expressly agree that
the testimony and exhibits received into evidence " in the C case, together with the
earlier described objections of the Respondent in the R case, the Regional Director's
two reports thereon , and the Board's order directing hearing therein, "shall consti-
tute the entire record of the hearing" in the R case; that "no further evidence is neces-
sary or desired ," and that all parties "expressly agree that the Trial Examiner who
conducted" the C case hearing may "resolve the issues of fact raised" by the parties
in the R case "with respect to Objections 2 and 3 on the basis of" the foregoing record.
On March 29 , 1961, the Board issued an order, thereafter amended on March 31.
By this amended order, the Board , after reciting certain facts about the R case, the
C case, and the above-described stipulation of the parties, rescinded its order directing
hearing in the R case, and ordered that the R case and the C case be consolidated.
The Board further ordered that the R case be "transferred to Trial Examiner Earl S.
Bellman" and directed me to include in this report "appropriate findings of fact and
law in connection with" objections Nos. 2 and 3 . The Board 's amended order also
provided that within 10 days the parties could file briefs with me on the issues raised
by objections Nos. 2 and 3, "specifying the evidence relied on in support of their posi-
tions and citing cases in support of the legal conclusions."
- Pursuant to the foregoing provision , briefs have been filed in the R case by the
Employer and the Petitioner which have, as therein requested , been carefully con-
sidered in conjunction with the C case briefs.
Upon the records in the cases thus made by hearing , stipulation , and order; my
observation of the demeanor of the witnesses in the C case hearing ; careful considera-
tion of all of the contentions of all parties in both of these consolidated cases ; diligent
analysis of the evidence in the light of di$ering legal principles applicable to the
C case and the R case issues; and painstaking reconsideration of numerous procedural
and evidentiary rulings and problems; 4 I make the following factual and legal find-
ings, conclusions, and recommendations:
1. THE BUSINESS OF DIXIE GAS, INC.
Dixie Gas, Inc., the Respondent in the C case and the Employer in the R case, is
a Mississippi corporation, having its principal office and place of business in Leland,
Mississippi, and an accounting and bookkeeping office in Marks, Mississippi. Through
its Leland "terminal," the Respondent is engaged in the wholesale distribution of
liquefied petroleum products. During a representative 12-month period preceding
November 10, 1960, the Respondent, at its Leland terminal, purchased and received
goods, supplies, and materials valued in excess of $50,000, directly from points out-
side of the State of Mississippi. It is admitted that the Respondent is engaged in com-
merce, within the meaning of the Act, and I find that it will effectuate the policies
thereof to assert jurisdiction.
H. THE LABOR ORGANIZATION INVOLVED
General Drivers, Salesmen & Warehousemen's Local Union No. 984, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein
8 In a footnote, to this order, the Board adopted "the Regional Director's finding that
Objections 1 and 4 do not raise material and substantial issues affecting the results of
the election" and overruled those objections.
11 deem it sufficient at this point to say that, I have reached the conclusion, but not
without misgivings and only after weighing, many problems, that no prejudicial error will
result from my proceeding to determine the issues now posed, without first reopening the
hearing to receive some of the excluded .testimony and to-make a fuller record, especially
as to,background factors and overall tone and nature of preelection activities,,, Bear in ,
mind that what we have here is an unusual situation ; not one wherein alleged 8(a) (1)
activity was in issue at the time of the hearing as having also affected an election.
1056- DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
usually called the Union, is admittedly a labor organization within the meaning of
Section 2(5.) of the Act. The Union, which is the Petitioner, in the R case and the
Charging Party in the C case, has its headquarters in Memphis, Tennessee. It admits
to membership employees,at.the Respondent's Leland terminal and ,won the election
held there among the truckdrivers on August 26, 1960, concerning which the
Employer has filed objections.
III. GENERAL SETTING AND EVENTS IN ISSUE
The purpose of this section of the report is to so supplement the opening chrono-
logical "Statement of the Cases" as to round out a general picture of the setting
and events in issue in both of these consolidated cases. In presenting such broader
aspects, we will defer until later innumerable credibility problems presented by the
often ambiguous, highly conflicting, and flatly contradictory testimony with which
the record is so replete, and will rather rely primarily on evidence which is essentially
consistent or at least involves few contradictions. Moreover, with respect to such
evidentiary matters, I believe it would be helpful at the outset to place in the margin,
for easy reference, certain basic observations, with respect to the basis for subse-
quently stated findings and conclusions, which will generally be applicable throughout
this report .5 '
A. ,The Leland terminal and its operation
The Respondent's Leland terminal operates under the direction and supervision
of its vice president and general manager, Curry Holland, who has been with the
Respondent since its inception in 1947. It includes a fenced-in area which sur-
rounds a large garage, where several mechanics and helpers work on trucks, and in
one corner of which is located an office used primarily by Holland and the dis-
patcher. The terminal, which has some storage facilities for liquefied petroleum
products, primarily provides facilities for repairing, fueling, maintaining, and dis-
patching the trailer-type tank trucks in which the Respondent's 22 truckdrivers haul
principally butane and propane gases compressed to liquefied form.
The- general practice in procuring and distributing the Respondent's products in-
volves one group of drivers called "loaders," who leave with the trucks from the
terminal, which is located some miles east of the Mississippi River, in the early morn-
ing for refineries and terminals located largely in Louisiana and Arkansas, on the
west side of said river. Since the round trips for the products, including the loading,
time required at the various refineries and terminals, varies from about 8 to 12
hours, the loaded trucks return to Leland at various times during the afternoon.
Sometimes the same driver who picked up the load may take it on to its destination,
but normally, as each loaded'truck returns, one of a second group of drivers, known-
as "unloaders," will take the truck and make deliveries to the Respondent's cus-
tomers, who are primarily distributors of those liquefied gases. Thus usually each
truck goes through a long daily cycle, involving two drivers, a loader, and an un-
loader. It is noteworthy that many of the drivers have had, long, periods of
service with the Respondent and that when the terminal started, Holland drove a
truck along with the other drivers. Thus some of the older drivers have been for
many years on a first-name basis with Curry Holland.
B. Events and developments prior to the election
While there is collateral reference in the record to organizational activity among
the drivers some years earlier, the current organizational campaign for the Union
had its inception during May 1960, when driver L. Ray McDaniel and another
employee of the Respondent visited the office of the Union in Memphis, Tennessee,
and talked with a union official about organizing the Respondent's truckdrivers.
5 Generally, when essentially no material conflicts or inconsistencies are involved, evi-
dence relied on in making findings will not be identified Furthermore, variations and
inconsistencies, with which this record is so replete, as to what impress me as-minor
or collateral matters, will not be discussed, when the weight of the credible evidence
considered as a whole seems reasonably clear In addition, to avoid interminably pro-
tracting this report, innumerable factual details of relatively minor significance will of
necessity have to be omitted. However, what appear to me, after carefully reading the
entire record and rereading parts of it, to be material conflicts and inconsistencies usually
will be discussed . And in any event , the parties may be assured that all of the details
and variations in the record , along with all of their contentions at the hearing and-in
-all four of the briefs, have been considered carefully in reaching the findings and con-
clusions which follow.
DIXIE GAS, INC. 1057
McDaniel brought back some union authorization cards, one of which he signed
himself. Thereafter, McDaniel campaigned among the drivers on behalf of the
Union and got three other employees to sign cards . Drivers Hulet C . Burns and
Joe T. Phillips also assisted in the Union 's campaign , signing cards themselves and
talking in favor of the Union with other drivers. Thus all three of the dischargees
were active on behalf of the Union.
It was evidently shortly after the Union filed its petition on June 28 in the R
case that the Respondent's president, Willis Graybor, telephoned Holland and told
him about having received word from the Board that said petition had been filed.
Holland, who did not at the time of Graybor's call "know anything about any
attempt to organize" the Respondent's drivers, thereafter "talked to several men,"
including drivers John H. Cotton and Roy D. Divine, asking them whether they had
"heard anything about" the Union. Cotton replied that he "had heard something,
very vague." 6 Divine, who eventually became the leader of a minority group of
drivers who have committed themselves to continue to oppose the Union, told
Holland that the Union "wasn't going to get anywhere."
Sometime later, apparently shortly after the scheduled hearing of July 27, when
the Employer and the Union signed their stipulation setting a consent election for
August 26, Holland had a conversation with McDaniel, clearly one of the leaders in
the Union's organizational campaign, about the Union. The testimony of McDaniel
and Holland as to this conversation is in conflict. Said testimony, along with other
testimony which affords the basis for the General Counsel's contentions as to inter-
rogation, will be considered in a subsequent section of this report. For the present,
it is sufficient to note that Holland, who served as the dispatcher from August 15
until just after the election on August 26, during the period when the regular dis-
patcher was on his vacation, "had several conversations with Divine" which con-
cerned the activities of various drivers during the election campaign. During this
campaign, the Respondent took an active part against the Union, both through the
use of written material and by discussions in which Holland engaged the employees
individually.
While the Respondent admittedly "wrote several letters" to its employees during
the election campaign in which it "had a lot" .to say, including that "the history of
this union was one of violence," the record contains none of these letters, and the
testimony concerning them, for the most part, is quite fragmentary.? In any event,
it would appear that one letter of uncertain date, about which we know nothing
else, contained these assertions:
If you haven't already inquired and found out about the history of Jimmy
Hoffa's Teamsters Union for violence you ought to do so. If you vote this
union into our company you can be, sure the_ union will create distress between
management and [our] own employees which may lead to strikes, layoffs, and
even violence. We do not propose to roll over and play-dead for this or any
other union.
And we also know that on August 19, just a week before the election, the:Respond-
ent addressed a letter to "Dear fellow employees," in which it extolled, in the
following statements, which obviously do not appear in total context , some of the
advantages offered by the Respondent:
There is now no regimentation , no watchdog , no timekeeper , et cetera. In
fact we have freedom of mind due to the fact-that each-man here is practically
on his own.
6 Findings in the above paragraph are made on credited testimony of Holland, from
which the quotations are taken . When called as a witness for the Respondent , Cotton,
who has driven a truck for the Respondent for 12% years , testified that he told Curry
that he "hadn't heard anything about it." I accept Holland's testimony as the more
accurate -
' Such evidence as we do have on these letters was adduced during cross-examination
of Holland on C case issues by the General Counsel, when no R case issues were before
me. Had objections Nos. 2 and 3 been in litigation at the time of the hearing , I would
have tried to secure a less fragmentary record on matters such as the above But since
the earlier described stipulation to consolidate cases, entered into after the bearing
before me had closed , asserts,that "no further evidence is necessary or desired ," I have
decided , as above indicated , .to accept the task of working my way through the R case
problems with what I feel is a, none too adequate record I have reluctantly decided to
do this, primarily to avoid delay, expense , and complications which resuming such a com-
plex hearing undoubtedly would involve.
634449-62-vol. 135-68
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Freedom on all runs, coffee stops, breaks, et cetera.
Loans to employees, legitimate personal loans have never been denied, all
without interest. If six percent had been charged on loans made to employees
in the last 12 months it would have amounted to over $600.
Purchasing power. We have given all employees the privilege of buying
at our cost for personal use tires, parts, et cetera.
Moreover, it further appears that during the Respondent's campaign against the
Union, it also mailed its employees two pamphlets and "some newspaper clippings,"
and that it wrote them 3 days before the election that it was chiefly concerned that
they know the "corrupt gangster" history of Teamsters,8 so that "you and your
family will know what will be facing you."
During the election campaign, there undoubtedly were numerous discussions of
varying length and intensity about the Union, pro and con, among the Respondent's
employees. The record is replete with testimony, particularly that of driver Roy
Divine, as to such conversations. Divine's testimony, much of which is flatly con-
tradicted, forms the basis of most of the Employer's contentions in the R case and
of most of the reasons advanced by the Respondent in the C case for the three
discharges. A concise statement as to the period before the election is to be found
in the Employer's brief in the R case, under the caption, "The Most Pertinent Facts."
There, in about 2 pages, are set out 13 separate contentions, 9 of which name Divine,
3 each involving, respectively, Phillips, McDaniel, and Paul Kuhns, the secretary,
treasurer, and assistant business agent of the Union, and the only individual in-
volved whom the Union admits is its agent.
In essentially the words used in said R case brief, but reorganized as to groupings,
it is contended that, during the period prior to the election, Phillips repeatedly
threatened Divine with physical violence if he crossed the picket line during a strike;
informed Divine that another driver, Hammock, would be run off the job because
he would not vote for the Union; and showed Divine a picture of himself and a
woman other than his wife, threatening exposure if, Divine persisted in opposition
to the Union.
It is further contended that McDaniel threatened Divine that he would get him
and "sweep him out of the shop" if he did not cease campaigning against the Union;
told Divine that he would be killed if he drove during the strike; and, referring to
"the picture" in the presence of Kuhns the night before the election, gave Divine
the alternative of leaving his employment with the Company or going along with
the Union.
As to Kuhns, the contentions are that at a meeting in his motel room on August 25,
the night before the election, Kuhns threatened Divine with having his face caved
in; referred to "the picture" in an effort to coerce Divine into abandoning his oppo-
sition to the Union; and instructed Divine "to mark his ballot with an identifying x."
The remaining four alleged instances cited in the aforesaid brief involve a threat
by McDaniel to clean Carrol Sims and F. E. Poag, two of the Respondent's shop
mechanics, out of the shop; a cursing of Poag by McDaniel "in a violent manner
because of his opposition" to the Union; a threat by Hulot Burns the night before
the election to driver Luther E. Ware that he would be killed if he voted against
the Union; and a message which Phillips had an intermediary convey to driver John
Cotton to the effect that Cotton would be run off the road if he did not vote for
the Union.
Concerning developments prior to the election, certain further testimony, about
which a motion to strike is pending, should be mentioned. This was adduced by the
General Counsel through Charles Melton, the only one of the 22 drivers who did
not vote in the election. Melton testified that shortly before the election, he received
an anonymous telephone call, during which he was told, "If you don't vote against
the union, something might happen to somebody in your family." [Emphasis
supplied.]
As earlier noted, during the election conducted about midafternoon at the Leland
terminal on Friday, August 26, the Union received 13 votes, and there were 8
votes against it. The observers for the Union during the election were dischargees
McDaniel and Burns. The observers for the Employer were the above-mentioned
mechanics, Sims and Poag. We turn new to developments following the election.
C. Postelection events and developments
On the afternoon of August 26, 1960, after the Union had won the election,
Holland went to a nearby cafe and told some,of the employees whose personal cars
Teamsters will herein be used in a general sense, not to denote the Union specifically.
DIXIE GAS, INC. 1059
were parked inside of the terminal ' fence to remove them so that he could close and
lock the gates to the terminal. After the-employees had done so, the terminal gates,
contrary to normal practice, were closed and locked that night .9
Also either on the same afternoon of August 26, or some 2 weeks later, but in any
event, after the election, a conversation involving drivers Burns and Bowman took
place with respect to whether Burns had sold his house. The evidence as to what
transpired is in conflict and will be discussed later, along with the Respondent's
contention in its C case brief that Burns thereby "threatened Bowman with loss of
employment."
During the morning of Saturday, August 27, the day after the election, Holland
and Phillips had a conversation in the terminal office during which Holland told
Phillips, who has driven for the Respondent for over 9 years and was its third oldest
driver in point of service, that from then on it would not be "Curry and boys"; that
he was the vice president and would thereafter "be addressed as Mr. Holland, and
you-all will be addressed as men"; that he had been against the Union "from the
beginning"; that he would "be against it till the day they hit me in the face with a
shovel"; and that there were going to be "some new rules around here." Holland
then mentioned several changes, which need not be related now, because Holland'
discussed them later that day at a meeting of substantially all of the drivers, to
which we next turn. Before their conversation that morning concluded, Holland
said to Phillips, "Furthermore you owe this company some money, and I want you
to make arrangements to pay it immediately." 10
Having been notified to attend a special meeting, nearly all of the Respondent's
drivers assembled at the terminal on the afternoon of August 27. Holland's intro-
ductory remarks were similar to what he had told Phillips at the opening of their
talk that morning, essentially that he was in authority as the Company's vice presi-
dent and should be addressed as Mr. Holland; that while the drivers had voted the
Union in, the Company was still against it and would not take it sitting down; and
that the drivers were going to have to abide by some changed rules which he would
state. What follows in the next paragraph, possibly interspersed with a little dis-
cussion as he went along, is substantially what the evidence as a whole shows that
Holland then told the drivers.ii'
In the future, the terminal gates would be opened at 4:30 a.m. and the loaders were
to leave by, 5 a.m. to pick up their loads of products for eventual distribution by
the unloaders. Coffee breaks were to be of no more than 15 minutes' duration,
during which time tires were also to be checked. Such -coffee breaks were to be,
taken only after having driven 75 miles. The drivers were to observe strictly the
speed limits in the three States in which they were driving, namely, 45 miles per
hour in Louisiana and Mississippi, and 50 miles per hour in Arkansas.12 Abuse of
the Respondent's trucks and equipment by any driver would subject such driver to
possible discharge. Drivers were to leave the terminal and were not to loiter there
after their work had been completed. Any private vehicle which had a "butane
system" 13 on it was not to be parked inside of the terminal fence. Otherwise
drivers' personal cars and pickup trucks could be parked inside` the fence at ap-
9 No lockout is alleged, but the General Counsel sees the above incident as "showing
union aniitius." Holland testified that he told the employees involved that they were
going to lock"the gates "for that night," and that it was decided to do so because "We,
were afraid our motors would be doctored and we didn't have a night watchman at that
time." All things considered in total context, I am not satisfied that the above incident
necessarily shows what the General Counsel Indicates
In The quotations in the above paragraph are from credibly given testimony of Phillips,
which was not contradicted by Holland There were no other individuals present
11 The above findings and those in the paragraph which follow are made upon my analy-
sis of the testimony of Holland and of drivers McDaniel, Burns, Phillips, and Bobby
Coleman. I find no significant inconsistencies or contradictions in said testimony In
fact, the Respondent's brief in the C case concedes that there is "little or no factual,
dispute as to what was said by Holland to the assembled employees," and that the
Respondent unquestionably "tightened up" its instructions or rules "in certain particu-
lars." I, have decided not to use quotations in either of the paragraphs involved because
I see no particular reason to take the detailed wording of any one of these five witnesses,
in preference to that, of the others, particularly where the material aspects are essentially,
consistent, despite'variations in details ,
12 Apparently either during the meeting or shortly thereafter, at least one driver raised
a question as to whether the speed limit in Arkansas had not been increased to 60 miles
an hour for trucks.
13 Such systems are not legal in Mississippi unless licensed by the State
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
propriate places away from the garage building itself. And finally, drivers there-
after were to secure purchase orders from the Respondent before purchasing auto-
motive parts on company credit for their personal vehicles.
It was on August 31 that the earlier-described objections to the election were.
filed. About September 1, there were developments, as to which the testimony is
contradictory, which relate to what the Respondent's C case brief characterizes as,
"a near violent three-on-one altercation at the Hico refinery," involving the three
dischargees and Divine, which will herein be called the Hico incident. This inci-
dent, about which the later-discussed testimony is involved, extensive and highly
conflicting, occurred on the morning of Friday, September 2, was thereafter re-
ported to Holland by Divine, and bulks large in the Respondent's defense to the
8(a)(3) allegations of the complaint. It was the following day that counsel for the
Respondent initiated action in what became the above-mentioned CB case, by,
addressing a letter to the Regional Director, which the General Counsel intro-
duced into evidence. Referring at the outset to "a critical situation which has been,
developing and which has come to a head," the Respondent's letter of September
3 charges essentially that the Union, through its "officers, agents and representa-
tives," Kuhns, McDaniel, Burns, and Phillips, "engaged in coercion, threats and:
intimidation of and against the employees" of the Respondent in exercising rights
guaranteed by the Act. On September 7, the Respondent filed a formal 8(b) (1) (A),
charge in the now-closed CB case. -
One evening, evidently during the joint investigation of the CB case charge and
the R case objections, a Board agent went to the chief of police of the city of Leland,
V. M. Underwood,. and told him that some employees of the Respondent were carry-
ing guns"; 14 that feeling was "running high"; that he was "afraid that the thing
might get out of hand and somebody get hurt"; and that he felt that he "should
tell somebody in authority about it." The next day, Chief Underwood telephoned
Sheriff Hollingsworth and related what he had been told the preceding evening.
Underwood and Hollingsworth discussed the situation and decided to "talk to these
men and try to ease the tension." Underwood thereafter asked Holland "if he
could get them all down at one time." Holland said that he could, and would put a
notice on the bulletin board for a meeting the following night. Pursuant to that
arrangement, a meeting of practically all of the drivers, and,apparently a few other
employees; was held at the terminal on the evening of Saturday, September 10, 2
weeks after the election. According to Chief -Underwood, from whose credited
and uncontradicted testimony the foregoing quotations have ibeen taken, he spoke
first, making "a few remarks ,as i to the reason for the meeting and then Sheriff
Hollingsworth did most of the talking." According to credibly given and un-
contradicted testimony of Holland, Sheriff Hollingsworth talked
to the men and he appealed to them as men who had worked together for a
long time, had been friends; not to do anything that'they would regret for the
rest of their lives, and advised them to leave those guns at home,
On September 22, the Respondent discharged Burns, McDaniel and P ips.15
In each case, the discharge was effectuated by Holland orally informing each driver
individually of his ,termination and thereupon handing each one a letter, dated Sep-
tember 21, 1960, addressed to him individually, which was signed by Curry Hol-
land as "Vice President." Each letter contained the following single paragraph:
You are herewith advised that your services with this company are terminated
as of the close of work Thursday, September 22, 1960, because of misconduct.
14 The record shows that guns were not being carried by any of the three dischargees,
but that Divine and some of the drivers associated with him in opposing the Union were
among those known by Holland to be carrying guns
15 There are differing versions in the testimony of Phillips and Holland as to an in-
cident, about a week or so earlier, during which Holland, when Phillips complained about
the condition of his truck after it had been serviced, told Phillips, among other things,
that he had been hired to drive a truck. But since this incident was not adduced by
the Respondent to justify its discharge of Phillips, I deem it unnecessary to determine
what else Holland may have said at that time. However, even accepting Phillips' version
of the reasonableness of his request and his testimony that he was also told that he knew
how Holland felt about him and that Holland had not hired him "to help me run my
business," such animus as may thereby be shown would not be material, in view of the
basis upon which the issues herein ultimately are determined. In any event, the fore-
going is the only incident shown by the record during the 12-day period, between Sel tem-
her 10 and 22 , involving any of the dischargees.
DIXIE GAS, INC. 1061
No explanation of the "misconduct" was then or thereafter given to any of the three
-discharged drivers , although McDaniel and Phillips specifically raised that ques-
tion upon reading their respective letters. When McDaniel asked "what misconduct
meant," Holland told him, "If you don 't know, I am not going to tell you." And
when Phillips indicated that he did not understand , Holland said , "If you don't
understand, we are not going to tell you."
Prior to September 22, Holland had received various reports , principally from
-Divine, about activities of the three dischargees. Also, about September 10 or .12,
Holland had read a copy of an uncorrected , seven-page affidavit, which Divine,
after several corrections had been made therein , swore to and signed on Septem-
ber 10, 1960, before Board Agent William R. Magruder. That affidavit, in both its
corrected and uncorrected forms , copies of both of which are in evidence , contains
statements about or references to some but not all aspects of the alleged misconduct
here in issue.
Holland testified that he discharged McDaniel , Burns, and Phillips because he be-
lieved that "every bit of the threats, violence, threats of violence and the blackmail
that happened in the company was traced to those three men ." However, before
making those discharges , Holland did not see fit to afford Phillips , who had been in
the Respondent's employ 91/2 years, or Burns, who had worked for the Respond-
ent for 7 years, or McDaniel, who had been employed some 6 or 7 years, an oppor-
tunity to know what the charges were which had been made against him and to
present his version of the various incidents involved . In fact , the only evidence
which I find in the record that any kind of opportunity was ever afforded any of
the three dischargees to tell anything about his side of any of the situations is
ambiguous testimony of Holland that "prior to the election" he told Phillips that he
understood that Phillips had threatened Cotton, or "it may have been Mr. Divine,"
and that "of course he denied it."
Procedural developments, beginning with the filing of the Union's charge in the
C case the day after the discharges, through the issuance of the Regional Director's
reports on objections in the R case, the conduct of the hearings in the C case, and
the subsequent consolidation of the R case with the C case, already have been
covered sufficiently. But before proceeding, it would be well to state two general
facts upon which the parties agreed when I questioned them at the close of the
hearing. Despite discussion among drivers of what might happen in case of a
-strike, no actual "strike threat" had been made on the part of the Union. More-
over, whatever feelings and tensions there may have been, they can in no part be
attributed to racial differences, as no Negroes were involved. In short, whatever it
was that happened, it did not come about under strike threat or because of racial
conflict.
IV. SOME GENERAL OBSERVATIONS AND CONCLUSIONS
A. Concerning the issues in both cases
There are aspects of the relationship between the C case and the R case, including
credibility problems common to both, which suggest that decision may be expedited
by some general observations and conclusions. It will be recalled that it is not the
8(a) (1) allegations as to interrogation and changed conditions of employment which
,are common to both cases, but it is rather the preelection portion, by far the major
part, of the Respondent's affirmative defenses to the 8(a)(3) allegations. The
foregoing unusual relationship between R case and C case issues, the way in which
the cases were consolidated after the C case was already under advisement,16 and
the differing standards applicable to the issues common to the two cases, lead me to
-believe that it may be helpful to make some preliminary explanations as to the organi-
zation and procedure which will hereinafter be followed in deciding the issues.
In the first place, I have decided to begin with the evidence common to the issues
in both cases, analyzing said evidence initially to determine the R case facts and
issues. My primary reason for doing so is because my analysis of all applicable con-
tentions and of many decisions convinces me that applicable R case decisional
standards with respect to this common evidence are essentially broader and require,
under the conditions here pertaining, that the highly conflicting evidence on all of
'" Although I find no 8peoific provisions in the Board 's rules or procedures for all that
was done in this regard, I am not raising any procedural question as to said consolidation,
in view of the unusual circumstances here prevailing and the Board 's broad powers But,
as one who has undergone a perplexing and onerous experience , I do wish respectfully to
urge that any procedure which puts a Trial Examiner in the unhappy position of having
to decide issues which were not before him at the time he heard the evidence be avoided.
insofar as possible.
1 062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,the earlier noted incidents of preelection conduct put in issue 'in the Employer's
R case brief be considered, and that findings of fact be made with respect to all of
them. Thus, while some of these instances might be disposed of in the C case
without such time-consuming analysis, especially where the evidence fails to show
knowledge thereof on the part of the Respondent prior to the discharges, whether or
not an employer had such knowledge is not an R case test, the test being whether
or not certain things occurred which may have had bearing on the free exercise of
their right to vote by employees. Again, it is my carefully considered opinion that
.behavior may be found to affect the results of an election, even if it is not of such
a type as to constitute unprotected concerted activity which would justify separation
from employment, thus making the R case criteria more sensitive than, but inclusive
of, criteria applicable to the defenses to the discharges in the C case.
Moreover, even though lack of evidence to the contrary appears to support the
Union's contention that only Kuhns actually was its agent, and even if the known
leadership of'McDaniel, Phillips, and Burns in the union campaign were less clear,
I believe that it would be necessary, under applicable R case criteria, to determine
the extent to which they, as well as Kuhns, actually engaged in the conduct
charged.17 And I am convinced, by my analysis of the earlier defined R case
"record," that the Board would not consider it "appropriate," within the meaning
of its order transferring the R case to me, for me to do otherwise.18
In the second place, all of the incidents advanced with respect to the R case will
be considered, despite the fact that it is not clear whether some of them fall within
the time span of the objections, which begins with the date of the stipulation for
the election, July 27, 1960 When the hearing was being conducted, the initial date
which was controlling with respect to such conduct was July 15, the date upon
which it is alleged in the earlier discussed supplemental answer that the activities of
Burns, McDaniel, and Phillips commenced Further, while it was difficult to get
even approximate dates for some earlier matters, particularly from the witness
Divine, there seemed less reason during the C case hearing to try to do so with
respect to mid-July. In any event, there is no recourse now which is realistic other
than to consider all of the events occurring prior to the election which have been
put in issue, even if some of them may have occurred earlier than July 27. Further,
since such events apparently occurred within the 6 or 7 weeks prior to August 26,
the date of the election, no purpose will be served by trying to fix the relative dates
of these incidents, or by trying to treat them in chronological order
In the third place, since it has become necessary, in dealing with the R case issues,
to take the long way around with respect to all aspects of the Respondent's 8(a) (3)
affirmative defenses which occurred during the preelection period, which means a
quite substantial majority of said defenses, my originally intended treatment of some
8(a)(3) issues in the C case will be modified. This will be done because, however
much simpler and shorter it might have been as C case procedure to dispose of
some instances upon such grounds as even assuming that certain occurrences did
take place, the Respondent lacked knowledge of them, or they were essentially too
trivial, or too remote, or were condoned, most of the material facts already will have
been determined. Hence I am now convinced that by the time the C case is reached,
it will be more involved to try to determine whether or not the Respondent "wholly
failed to establish that it had a good faith belief that Burns, Phillips, and McDaniel
were guilty of the conduct for which it claims they were discharged," the first of
the alternative positions taken in the General Counsel's brief, than to go forward
with the task of determining whether or not the General Counsel has proved that
the three dischargees were "not in fact guilty of the alleged misconduct," which is
the General Counsel's second position. In any event, because I feel that sequence
will better be preserved upon going from the R case to the C case, I will start my
consideration of C case issues by taking up the 8(a)(3) allegations therein before
discussing the alleged Section 8(a)(1) violations, which clearly have no bearing
17 See Diamond State Povltri, Co., Inc, 107 NLRB 3, 6; and Poinsett Lumber and
Manufacturing Company, 116 NLRB 1732, 1739
18It is worthy of note that the Regional Director, with respect to alleged activity of
persons other than Kuhns, had, in his report on objections of October 7, 1960, the
following to say, in connection with which he cited Orleans Manufacturing Company,
120 NLRB 630:
No evidence was submitted, or adduced by the investigation, that the statements of
employees were authorized or condoned by the Petitioner The Board has held that
similar statements by rank and file employees absent ratification authorization or
condonation by the Union, are not valid grounds for setting wide an election
DIXIE GAS, INC. 1063
on the R case issues, and which I do not believe are material to the basis upon
which the 8(a)(3) issues eventually will be decided.
B. Concerning credibility problems in both cases
We come now to some general observations and conclusions pertaining to credi-
bility problems common to the R case and the C case. All four briefs agree that
credibility issues are quite basic and pervasive. For instance, the Respondent's
C case brief devotes nine pages to an able section, entitled "Credibility Observations,"
which begins by stating that my decision in the discharge cases will turn, " in a more
marked degree than usual, upon the resolution of credibility issues." Again, the
Union's brief in the R case states, "Basically it resolves itself to a question of
credibility."
Because credibility is indeed so central to both the discharges and the election
objections, and because the voluminous testimony of the Respondent's principal
witness, Roy Divine, looms so large in such respects, I believe that it will expedite
consideration of extensive conflicts between his testimony and that of other witnesses
to present now a general picture of Divine and a broad appraisal of his relative
credibility.
Divine, who started working for the Respondent in May 1956, was not, at the
time the current organizational activities started, among the Respondent's senior
drivers, having been employed about 4 years. Early in his employment, at a time
when there was "quite a squabble among the other men," to use Divine's words,
concerning matters about which he knew but did not tell Holland, Divine was dis-
charged, but Holland rehired him immediately, when Holland decided that Divine
was not personally implicated, thereafter telling Divine, "You cannot be for the
company and knowing people were tearing my trucks up and not say anything about
it." Divine has since not told Holland "everything" he has known about other
employees; "only on the Teamsters Union."
The evidence as a whole leaves no question but that Holland and Divine both
have strong feelings against the Teamsters. In fact, Divine testified that he is "much
harder against the Teamsters Union than" Holland, who could not "possibly be half
as hard as" Divine. Divine also testified that he told Holland that he "was nonunion
all the way and if the company went union" that he was going to quit, as he would
not work under a union . Yet Divine also admitted that during the preelection cam-
paign, he "changed back and forth quite a bit" and was sometimes for the Union.
While I believe that Divine never was actually openminded about the Union, I am
satisfied on the evidence as a whole that Divine would blow hot and cold on the
Union to draw out leaders in its campaign , such as Phillips and McDaniel, with whom
he was initially on quite friendly terms.19 Moreover, I am equally convinced that
most of the later-analyzed discussions, while sometimes including profane and
obscene language so familiar to the trade that we need not, except where specifically
in issue, burden this report therewith, were much less tense and tempestuous than
Divine, a highly volatile, verbose, and self-dramatizing individual, patently given to
exaggeration and to exhilaration in unwinding a strongly flavored story, pictured
them as being.
From Divine's own testimony, we learn that he sometimes was more interested in
the effect he desired to get with his fellow employees than he was with the truth
about what he had to tell them. For instance, Divine, who insisted during his testi-
mony that he had not actually done so, admittedly told others as "just scare talk"
that he had killed two men at whom he had become angry and that he had served
time in a penitentiary for it. Also Divine, who I am satisfied was, as he testified,
having an affair with another woman, has told people that he is not really married to
his wife, but that she is just acting as the guardian of his children. Moreover,
Divine's description of an occasion, upon which he obviously was spying on a meeting
of drivers interested in the Union, unmistakably indicates his stark lack of respect
for the privacy of another's home. And then there is the fact that Divine recently
challenged one of the other drivers, Robert Webb, to a duel with either knives or
guns. Nor should we be unmindful of Divine's testimony that he once had "worked
as a bouncer"; that he had "a little judo training" and knows "how to use a knife";
that he is "about as good a shot with a rifle" as one would find; and that he is so
trained in taking care of himself that he can "whip one man easily" but that with
"two men the chances grow."
19 In fact, Divine testified that he "thought more of Joe Phillips than anybody on the
'job." And it was just 2 days before the election that Divine volunteered to help McDaniel
,with a domestic chore ; together they put up a stove for McDaniel's sister.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No purpose would be served by exhausting the record illustrations, in substantial
part in Divine's own testimony, of Divine's dislike of the Teamsters, his fearlessness
and proficiency in the use of force, or his facility in employing deception to further
his own ends. But it should be noted that Divine, whose quite extensive, often highly
involved, and frequently ambiguous testimony took most of 2 hearing days, went to
the homes of several of the drivers after the election, and that as Divine explained it,
"there were eight of us" who were "against" the Union who, with Divine obviously
as their leader, formed "our own club or a union of our own selves, call it a union
or what you want to." 20
The multiplicity of credibility problems involved in the cases at bar, to which I
have devoted long consideration and much analysis, could not be explained fully,
short of such a protracted report as to be intolerably ponderous. Hence, pointing
again to the generally applicable observations set out above in footnote 5, I will, for
the present, limit myself to stating that, all due consideration being given to such
reluctance, evasiveness, or lack of candor as was also shown by several other wit-
nesses, by intensive study of the details in the recorded evidence and my painstaking
weighing of all credibility factors have confirmed the general impression which I had
at the close of the hearing, after due observation of the demeanor of the witnesses,
namely, that of all witnesses called, Divine made the poorest overall impression and
was the least credible.
V. FURTHER FINDINGS APPROPRIATE TO CASE NO. 26-RC-1457
A. Objection No. 3
Upon the foundations laid above, in sections III and IV, we come specifically to
appropriate findings of fact and law with respect to objections Nos. 2 and 3 in the
R case. We will start with the simpler one. Objection No. 3, the gravamen of which
is, as earlier noted, that "agents of and persons acting for" the Union placed the
families of certain employees of the Employer under such "fear of reprisal and bodily
harm" that a majority of those eligible to vote were "affected by fear, intimidation
and coercion."
None of the earlier-noted 13 instances listed in the Employer's brief appears to
involve any threats of reprisal or bodily harm to families of employees. In fact,
aside from the previously mentioned letter, which the Respondent addressed to its
employees 3 days before the election, telling them that it was chiefly concerned that
they know the "corrupt gangster" history of Teamsters, so that "you and your family
will know what will be facing you," the only evidence which d find pertaining to
"family" is the earlier-quoted testimony of driver Charles Melton, about what he
was told anonymously on the telephone shortly before the election and about which a
motion to strike is pending. Certainly the Respondent's letter does not fall within
objection No. 3 because, whatever fear it may have inspired with respect to families
of drivers, the letter patently did not emanate from anyone acting for the Union.
On the other hand, the statement which was made to the only driver who did not
vote, namely, "If you don't vote against the union, something might happen to some-
body in your family," is of such a nature, in my opinion, that f must explore Melton's
testimony pertaining to this anonymous call, to comply with the Board's direction in
the R case. Accordingly, however persuasive the argument of the Respondent for
striking said testimony as "not proper rebuttal testimony" by the General Counsel
might have appeared, were I working within the framework of the C case only, in view
of the subsequent consolidation and the R case issues, said motion to strike is hereby
denied.
Melton, who has worked for the Respondent for over 8 years, testified under
subpena and with admitted reluctance when called by the General Counsel as a rebut-
tal witness. This is the substance of his testimony on the incident under consideration.
At a time identified only as "shortly before the election," Melton received a telephone
2O The evidence leaves no doubt that three of the later mentioned witnesses called by
the Respondent, drivers John H. Cotton, K. W Bowman, and Luther E Ware, are among
those In the above group against the Union. In fact, when Divine named the other
drivers associated with him, the foregoing three, in that order, headed his list More-
over, among employees whom Holland testified that he knew were carrying guns about
September 10, because he had seen them, were Divine, Cotton, and Ware. In addition,
Holland testified that Ware was "on our side" and had told him that he was against the
Union and had voted against It; that Cotton had told him that he was for the Company
and against the Union ; and that it was not "until after the election" that Divine had
told him that he was "spying around" on union meetings and sneaking up to screen doors
and listening to what people had to say.
DIXIE GAS, INC. 1065
call, which he knew was "made from a pay phone" because he heard "the money
drop in the telephone." At the beginning of the conversation with ",the guy" who
called, Melton was asked "if this was Chuck." When Melton replied in the affirmative,
he was asked, 'How do you stand on the election?" Melton thereupon said, "That
is none of your business. Who is this?" His caller replied, "It doesn't matter who
this is," and then said, "If you don't vote against the union, something might happen
to someone in your family." Melton, who has never been threatened in any way
by Burns, McDaniel, or Phillips, and who is familiar with their voices and was of the
opinion that none of them was his-caller, got in his "pickup and went to the nearest
pay phone." Finding the booth empty, Melton "drove by a man's house" in order
to satisfy himself "it was either him or it wasn't him." As Melton drove by without
stopping, he "saw someone going through the door," and assumed that it was the man
he had in mind. Melton eventually testified that he was familiar with Divine's voice;
that he had talked with Divine over the telephone; and that, when asked if, in his
opinion, it was Divine's voice he had heard on the telephone, he "couldn't say defi-
nitely that it was. It sounded similar to his voice." 2t
Everything considered, particularly Melton's unequivocal opinion that his tele-
phone caller shortly before the election was not Phillips, McDaniel, or Burns, and his
reluctantly given opinion that the voice sounded like that of Divine, I am convinced
that there is no evidence whatsoever in the record connecting the Union with this
telephoned threat shortly before the election, which patently was against its interest.
Accordingly, despite the lack of "laboratory conditions" caused thereby, I find that
objection No. 3 should be overruled. However, because Charles Melton did not make
what I consider a sufficiently positive identification of the voice of his caller as being
that of Divine, I make no finding applicable to either the R case or the C case as to
who the caller actually was, deeming it desirable, under all of the unusual circum-
stances pertaining to this matter, to avoid drawing inferences which are not necessary
to determining the issues before me. Hence, it is my considered opinion that other
contentions, advanced by the parties as to this conversation, which have not been
discussed, need not be stated or determined.
B. Objection No. 2
We come now to objection No. 2, which is herewith quoted in full:
Threats of personal and bodily harm were made to certain employees during
the period following the date of execution of the stipulation and prior and up
to the time of the election resulting in the coercion and intimidation of certain
employees, hindering and preventing them from free and unhampered casting
of their ballots.
It has been explained in the preceding section of this report why I deem it not
now feasible to try to adhere to the initial date of July 27, to attempt to make a
chronological presentation, or to establish precise dates. We turn now to the earlier-
mentioned 13 contentions in the Employer's R case brief, which fall sometime
before the election. In discussing these contentions, about which the evidence is
very involved, highly contradictory, and quite extensive, we will start with the con-
tention that driver Joe Phillips repeatedly threatened driver Roy Divine with physical
violence if he crossed the picket line during a strike.
1. Alleged threats by Phillips of physical violence to Divine
The locale of the discussions between Divine and Phillips in issue is Bell's Truck
Stop, herein called Bell's, which is located about 20 miles from the Leland termnial
on the Mississippi side of the Mississippi River, near the end of the Greenville
Bridge over that river to Arkansas 22 As Divine's story unfolded, he explained that
21 Earlier , Melton had explained that he did not want to answer a question as to
whom be had seen going through the door of the house he drove by because "I would
more or less be accusing someone that I'm not sure of"
211t should be noted that other conversations between Phillips and Divine about "the
picture," which are later discussed , also are placed at Bell's, where coffee, refreshments,
and other driver facilities and services are available. Section III, A, hereinabove, ex-
plains the relation to the Respondent's general operations of the work of its loaders,
who apparently often travel in pairs in making their runs . Loaders going to places in
Arkansas evidently often stop in the early morning at Bell's on their way to get their
loads, and apparently sometimes would stop again on returning with their loaded trucks
in the afternoon Whether unloaders also frequented Bell's is not clear, but it is evident
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he had had "at least 35 or 40 conversations" at Bell's with Phillips, some of which
lasted 2 hours; that sometimes these conversations occurred almost every day, or
even twice a day, "30-minutes or an hour in the morning and 30 at night"; that it was
difficult to keep from running two or three conversations together; and that "it would
take a book to write everything that was said and done at Bell's Truck Stop." Hav-
ing carefully studied all of Divine's extensive testimony, which is quite difficult at
times to follow, I am presenting hereinafter, in order to avoid extending this report
unduly, what I believe to be the gist of Divine's testimony, often using Divine's own
words without quotation marks, as there are frequently too many variations to
quote them all. What now follows is the gist of Divine's testimony as to repeated
threats of physical violence by Phillips.
The first conversation of Divine and Phillips about the Union was a friendly one,
during which Phillips tried to find out how Divine was going to vote The next
conversation which Divine remembered occurred after Divine had made "state-
ments to different boys here and there" to the effect that if there was a strike, he
did not intend to respect the picket line; that he was going to haul gas "even if I had
to shoot my way across the bridge to make it"; or regardless of whether he had to
-run over a picket if he got in my way." Word about such statements having in
the meantime got back to Phillips, he asked Divine about "this scuttle." During
that "second" conversation, Divine confirmed that he had made such statements;
asserted that he was not going to respect a picket line if there was a strike; insisted
that he was going to haul gas regardless; and told Phillips that there was no way of
talking him out of it. Phillips then explained "as a friend" who was trying to
straighten Divine out for his own good, "If we are on strike and you cross that river
you are not going to get back alive." During many subsequent conversations this
same subject repeatedly came up, Phillips made statements such as the above, and
Divine tried to pin him down as to who was going to get him, if he persisted, in the
event of a strike, in his declared course of action. During such subsequent con-
versations, of which there were "at least a dozen," Phillips told Divine that "it would
be done by somebody else" and mention was made of plants elsewhere, of being
run off the road, and of "bushwhacking." During said conversations, which included
many matters not now material, Divine and Phillips talked about "the different ways
it could be done," and Phillips stated that there was "a certain truck driver he
knew was dead in hell for trying the same thing" that Divine was proposing to do;
that he was trying to help Divine out as a friend to keep him from "getting into it
and dead and left alongside the road somewhere"; that "if they will shoot the bus
glasses out of a bus and passengers on that bus," what would "they" do to Divine;
and that if Divine "was going to lead a bunch" of nonunion men and "if Mr. Holland
had seven or eight men that wouldn't go union," then the Union "didn't have a dog's
chance " During their repeated discussion of Divine's having "the nerve to drive
across that bridge on a picket line," or "to shoot [his] way across" it, which was "one
of the main issues" between them during their numerous discussions, Phillips told
Divine "over and over not to drive across that bridge," and went so far one time as to
ask if Divine thought that he "would sit by here and watch you drive my truck," and
stated "if somebody else didn't get you, I would do it myself."
In connection with the foregoing summary of Divine's testimony on this issue, it
is important to note that both of the above-mentioned copies of Divine's affidavit to
a Board agent contain the following identical language:
He threatened me many times that if I carried a load of gas out during a strike
I wouldn't get back alive, however, I want to say that Phillips never said he was
going to do this himself, just that it would happen. [Emphasis supplied.] 23
We come now to testimony by Phillips which is pertinent to this issue. When
originally questioned about this matter, during cross-examination by the Respondent,
while testifying as a witness in the General Counsel's case-in-chief,24 hence prior to
Divine's having given the above-summarized testimony, Phillips testified that he
that such conversations at Bell's as are in issue took place between loaders, work then
being performed by Phillips and Divine, and that some of such conversations started
about 6 am
23 See the third from the last paragraph in section III, C, hereinabove In connection
with being shown his above statement, Divine testified, when asked by the General
Counsel if he was afraid of Phillips, "I am afraid of no man alive"
24 Phillips, like the other two dischargees. McDaniel and Burns, originally was called
by the General Counsel during his case-in-chief All three of the dischargees were later
recalled during the General Counsel's rebuttal One other driver, Bobby Coleman, was
similarly on the stand twice
I
DIXIE GAS, INC. 1067
remembered one occasion "outside" of Bell's when "a picket line" had been dis-
cussed with Divine; that it was possible that there were other occasions; that he had
talked with Divine "practically every morning"; and that sometimes it seemed he
might get Divine's vote for the Union and other times not. When first asked what
he had told Divine about his going through a picket line, Phillips answered:
I told Roy that if it were me I wouldn't want to drive over no picket lines for
the respect of the other boys and the respect of the other unions along the
road, of the different organizations that belonged to the union. I respected
those too much to be driving over a picket line.
When then asked if he had not told Divine, "You know that if you go through a
picket line something will happen to you," Phillips replied:
I told him that I had always been told if boys drive over a picket line that other
union organizations wouldn't appreciate it and something could happen to him.
Upon further questioning, Phillips also testified that he did not say that he "would
do him any harm," or that "a Teamster man would do him harm," but rather
that "other unions wouldn't appreciate his driving over a picket 'line."
When called by the General Counsel as a rebuttal witness, Phillips denied, flatly
and without equivocation, that he had ever told Divine that "if he crossed the bridge
and there was a strike he would not come back alive or anything to that effect"; that
he had ever threatened Divine by asking him what he thought "they would do to
him if they broke windows or anything to that effect"; that he had ever told Divine
that he was "going to shoot him" or was going "to hire someone else to shoot him";
or that he had ever told Divine anything like that if Divine drove his truck "while
the union was on strike [he] would get him if somebody else did not" There-
after, on cross-examination by the Respondent, Phillips testified that the follow-
ing excerpt, which was read to him from an affidavit which Phillips had sworn to
before Board Agent Magruder on September 10, 1960, was "true" as to what hap-
pened on one occasion at Bell's Truck Stop:
Dan Creekmore, the scale man was there and asked him some questions-what
local it was for one thing. Divine said it was a local out of Jackson, that they
were a bunch of thugs and crooks and hatchet men. After a lot of this I told
Creekmore that Divine didn't know what he was stalking about. That it was a
Memphis local. Divine said if it did come to a strike he was going through
the picket line and haul gas regardless. I said, "Well, Roy if it comes to that
I don't want to have no part of it. You know that if you do go through the
picket line something will happen to you." I can't remember all of my exact
words but the idea I expressed was that the union drivers wouldn't have any-
thing to do with him. I expressed no threat of any kind and Divine under-
stood this. This part of the conversation, about his crossing the picket line,
was outside. Nobody but Divine and I were there.
All factors duly considered and weighed, I credit the above denials of Phillips
and find that the foregoing quotation from his affidavit represents essentially what
happened when Phillips and Divine discussed the subject now in issue. I further
conclude and find that Phillips never threatened Divine that either he or the Union
would inflict bodily harm on him if Divine crossed a picket line in the event there
should be a strike, and accordingly that such a contention is without merit with
respect to objection No. 2.
2. The alleged intention to run Hammock off the job
We next take the contention that Phillips informed Divine that another driver,
Hammock, would be run off the job because he would not vote for the Union. What
follows in the next paragraph is the gist of pertinent testimony by Divine concern-
ing said threat about Hammock, one of the eight drivers who eventually clubbed
together against the Union.
During one of their many discussions, Divine confronted Phillips with an accusa-
tion that the Union was "going to run off" four men, himself, Hammock, Ware, and
Bowman. Phillips told Divine that he would have had no way of knowing that
unless he "was a peeping tom." Phillips also told Divine that if he caught him
around his house getting "dope" on him he would shoot Divine, and Divine said
that he would be forced to shoot Phillips first. Phillips then said that they had dis-
cussed three men but that "only Hammock was going to be run off." Divine pointed
out that Hammock had a family, and pressed Phillips as to why Hammock was to be
run off the job. Phillips eventually explained that Hammock and his wife had
driven past one of the unloaders, who was on a side road "with a woman," and that
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"that particular boy wouldn't go along with the union without they run Hammock
off," because Hammock and his wife had turned around and had come back so that
they could identify the woman with "the boy that got caught."
As earlier noted, Phillips denied ever telling Divine that he was going to shoot
him. Concerning other aspects of the foregoing testimony, Phillips convincingly
and unequivocally denied ever telling Divine that the Union was going to run a man,
or four men, off or anything to that effect. In addition, the record provides some
further light on this issue. In explaining Divine's report to him about this matter,
Holland testified that during the week before the election, when he "was doing the
dispatching," Divine told him, during some of their "several conversations," that
"they had agreed that Hammock," who was "real loyal to the company," had to go be-
cause he "wouldn't have any part of" the Union; and that Divine said that the Com-
pany was going to be made to discharge, or it was not going to be allowed to work,
"Hammock, Bowman and two others," some of whom had "our day runs," because
men who "were unloaders, our night workers, were being promised jobs that were
on the day runs if they would go along with the union." Thus Holland's version of-
what was reported to shun differs from Divine's version of what Phillips was sup-
posed to have said. It will be recalled that Divine himself was not among the older
drivers, and it may well be that there was discussion before the election about how
seniority would operate to give preferable runs to men with longest service, thereby
possibly resulting in some loaders being shifted to unloading. 3n any event, as later
noted, seniority was one of the subjects Divine discussed the night before the elec-
tion with Kuhns, and I am convinced that if there is any foundation whatsoever for
what Divine reported to Holland, it is to be found in permissible discussion, possibly
with Phillips, as to how seniority might operate with respect to some of the runs, if
the Union were successful in getting a contract after winning an election. But all
factors considered, I credit the denials of Phillips concerning Divine's testimony
about any driver being run off, and find that the contention as to Hammock is with-
out merit with respect to objection No. 2.
3. Phillips, Divine, and "the picture"
We come next to the contention that Phillips showed Divine a picture of himself
and a woman other than his wife, threatening exposure if Divine persisted in oppo-
sition to the Union. The alleged picture involved in this contention has ramifi-
cations which extend to the meeting on August 25, when both McDaniel and Kuhns,
allegedly threatened Divine by reference to it. Said picture also emerges again in
the Hico incident, following the election, which involved the three dischargees and
Divine, but has no bearing on the R case, except as to credibility factors. In short,
"the picture" is central to extensive and conflicting evidence, appearing in Divine's
testimony about his conversations with Phillips at Bell's, and reemerging in con-
nection with two major incidents thereafter, involving other individuals. Complex
matters of this type are difficult to present satisfactorily without becoming unduly
extended. Divine's testimony about the picture will presently be confined to his
discussions about it with Phillips before the election; the August 25 aspect will be
discussed below, in connection with other R case contentions; the Hico incident
aspect of the picture will be reserved for discussion of the discharges in the C case.
The totality of the evidence will, however, be weighed in reaching conclusions at
each of the three stages, so far as credibility factors are concerned. We turn now to
the gist of Divine's testimony about Phillips threatening him with this alleged
picture.
Early one morning, 2 or 3 weeks before the election, Divine and Phillips were
at a table at Bell's drinking coffee and discussing the Union. On that occasion'
Divine was insisting that he was not going to join it. One of the waitresses, Shirley
Thomas, referred to herein as Shirley, as she was throughout the hearing, was with
them for a while, but left the table to wait on a customer. After Shirley left, Phillips
briefly showed Divine a picture of himself and a woman friend named Evelyn,25
which Divine believed had been taken during July, about noon, near Bastrop, Louisi-
ana, on an occasion when he had been in the front seat of her parked automobile,
"hugging and kissing" Evelyn. As Phillips jerked back the picture, he told Divine
that he was going to have to stop working against the Union and join it, or the
15 While the record contains evidence about this admitted Louisiana "girl friend," In-
cluding her last name, where she has worked, and where she has lived, I see no point in
burdening this report with such details, and she will herein be referred to as Evelyn.
There seems no doubt that Divine actually was having an affair with Evelyn, and I be-
lieve that his affair with her was known to several other drivers.
DIXIE GAS, -INC. 1069
picture would be shown to his wife. Divine got "killing mad" and, although he did
not try to take the picture from Phillips, he told Phillips that he had killed "two son
of a bitches" for a lot less than that; that he had "been in the pen once"; and that it
would not hurt him to be there again. Divine also insisted that his wife would not
care, anyway, and to prove his point, Divine called Shirley to them; threw down 10
cents and some money, "$50 or $10"; and told Shirley to telephone his wife and tell
her that Shirley "was going with [him] across the bridge in a truck." Shirley refused
to make any such telephone call, and Divine and Phillips eventually went outside of
Bell's, where their argument about the picture continued, Divine repeatedly telling
Phillips that he wasgoing to kill him unless he got the picture. After some 5 or 10
minutes, Divine's threatening got so rough that Phillips jumped into his truck and
left.
Herewith is the substance of Divine's testimony as to a further altercation with
Phillips about the picture. On that subsequent occasion, a few days or possibly a
week later, outside of Bell's, Divine asked Phillips if he still had the picture. When
Phillips said that he had it with him, Divine insisted that he was "going to have it,"
and Phillips insisted that he was not. Divine ".bloomed sky high"; did "a lot of
bragging and blowing"; and told Phillips that he was "going to shoot his ass off,
several things like that." Divine finally "pulled a .38 pistol out"; told Phillips that
he was going to get the picture if he had it in his pocket; and thereupon "searched
him and he didn't have it." Then when Divine had "cooled off some," Phillips told
Divine that he was "not a union leader"; that he did not have "anything to do with
the Union"; that he was only "a messenger"; and that, while he did not have the
picture, he knew where the picture was.
Shirley Thomas was called as the Respondent's second witness, Divine being its
first one. She testified that when she had'been working at Bell's, Divine and Phil-
lips were sitting drinking coffee together and talking one morning; that when she
returned from a trip to the kitchen, they were arguing and Divine "seemed to be
mad" and had "raised his voice"; that Divine said that he "had killed two men before"
because of "something like this" and had "spent seven years in prison"; and that
Divine was "talking rather loud" and that he "hit his hand on the table."
Shirley Thomas also testified that from what she had heard they were arguing
about Divine "stepping out on his wife or something"; that she did not hear any-
thing about a picture; that Divine gave her 10 cents and asked her to make a tele-
phone call to his wife; that $10 and then $50 was offered if she would make the
call; and that she replied, "Well, if you would give me $5,000 I wouldn't call your
wife or anyone else's wife." Thomas further testified that while Divine "seemed
to be mad," she could not tell whether Phillips was because he was "just laughing
all through the argument"; that she had not seen any signs of a picture or photo-
graph; and that Divine earlier had told her that he was not married.
When called as a rebuttal witness by the General Counsel, Phillips denied, flatly
and without equivocation, that he had ever had a picture of Divine and a woman
who was not his wife; that he had ever showed such a picture to Divine at Bell's
,or anywhere else; that he had ever made any motions as though he were going
to show Divine such a picture or other item; 26 that he had ever told Divine that
The above-mentioned two copies of Divine's affidavit, one of which was signed before
Board Agent Magruder on September 10 and introduced into evidence the day after the
Respondent's subsequently mentioned offer of proof by the General Counsel "for impeach-
ment purposes only," both refer to Phillips taking "something out of his pocket," later
therein called "the item," which Divine "would rather not discuss or identify further,"
and with which Phillips was going to embarrass him or cause him trouble. No mention
is made in either of the aforesaid affidavits of any picture However, the Regional
Director's October 7 report on objections, with which all parties undoubtedly were familiar
at the time of the hearing before me, refers, in footnote 1 thereof, to an unnamed em-
ployee who refused to put in his affidavit "the nature of the alleged threat and 'off the
record' alluded vaguely to a photograph in the possession of other employees" During
the hearing before me, the Respondent offered to prove by Divine's testimony that Divine
had disclosed "his accusations relative to the use of the picture to Mr Magruder"
Partly because this offer did not include an offer also to show that the Respondent knew
of any such disclosure to Magruder, although Holland had read the unrevised copy of
Divine's September 10 affidavit, I sustained objections thereto and rejected the proof
In the light of the Regional Director' s foregoing statement in a document in what is
now part of the stipulated record in the R case, I have assumed , for credibility purposes,
that it refers to Divine , the only individual involved to whom it appears to be applicable,
and that Divine did mention a photograph to Magruder when Magruder questioned him
during the week ending September 10. It should be noted that the Respondent's offer
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he or anyone else . had such a picture or. item; that he had ever told Divine that
while he did not have the.picture , he was serving as a messenger; that he knew of
anyone else having such a picture ; that he had ever seen such a picture or had any
knowledge as to whether such a picture actually exists ; 27 that he had ever threatened,
blackmailed , or intimidated Divine with any picture or item; and that he had ever
tried to make Divine join or vote for the Union by using threats, blackmail, or in-
timidation . Phillips also flatly denied that Divine had "ever pulled a gun" on him.
This is the gist of what Phillips testified occurred during a conversation in which
Divine had said that he was going to kill two men. One morning "a few days before
the election ," Phillips and Divine were drinking coffee at a table at Bell's and
Divine was telling Phillips that "some of the drivers was messing with his girl friend
down in Louisiana ." Phillips was taking Divine's complaint lightly and was laugh-
ing about it when Divine asserted that there were "two sons of bitches" employed
by Dixie Gas that he was "going to kill " and that he was "going to whip " Holland
if things did not get straightened out. Phillips asked Divine if he "knew it was true
that they were messing with her," and Divine insisted that he "had caught them with
her." Phillips continued making light of Divine 's threats , telling Divine that his
wife was going to hang him or kill him "some of these days about your mess, you
and your other women," pointing out that Divine "was going along telling folks
along the road that he wasn 't married ," and that his wife "was just a woman that
was guardian over his kids." Divine answered , "My wife doesn't give a damn
about me." Phillips' rejoinder was, "Roy, you know she do or she wouldn't be
living with you." At this point , Divine offered to bet Phillips that his wife "don't
care nothing about me." In order to prove that was so, Divine called Shirley to
their table, telling her to take a $10 bill and a dime and "call his wife and tell
her that she was going across the bridge with him ." Shirley refused and Divine
said, "I will give you fifty." Shirley replied that she would not call Divine's wife
"for any kind of money." So they "laughed and tossed it off like that ." However,
as Divine and Phillips were leaving , Divine insisted that he still was going to carry
out his threat to kill the two men who were romancing his girlfriend , saying that
he "had killed folks for a hell of a lot less and had been in the penitentiary."
Testimony of Divine as to where and when he believed the picture in issue was
taken , around noon on a hot day in July, when two strange men pulled their black
Ford in ahead of the car in which he and his girlfriend were hugging and kissing,
is none too convincing . Admittedly Divine did not see either of the men at Bastrop
taking a picture, and he testified that he would have popped out of the car and
started fighting if he had even seen a camera. Moreover , Divine's own descrip-
tion of the relative positions of himself and his girlfriend in the picture which he
testified that Phillips showed him briefly at Bell's, the only time he had ever glimpsed
the picture , does not persuade me that an "incriminating picture" was involved. In
fact , I do not believe that one of Divine 's temperament would have reacted the
way in which he claims that he did , either with Phillips or thereafter with respect
to the later-discussed Hico incident, about what was, by his own description, not a
lewd or even a particularly amorous picture, especially when his romancing another
woman was no secret, and he was telling people that he was not even married to his
own wife.
But without further enumerating elements which detract from Divine 's story,
I am convinced , after carefully analyzing all of the evidence , including many details
not herein related , and upon weighing all credibility factors, that the only material
discussion between Divine and Phillips involving Divine's girlfriend took place at
Bell's, essentially as Phillips testified that it did 28 Moreover , on all of the evidence, I
further conclude and find , particularly in view of the above-enumerated denials of
Phillips, which were convincingly given , that Phillips never possessed , knew any-
thing about , displayed to Divine , or discussed with Divine, any picture of Divine
was not made in criticism of Magruder , but rather to show "a gradual process of di-
vulgement" by Divine of "the full facts of this case , including the matter of the picture."
ZT McDaniel , Burns, and Kuhns also made similar but somewhat less detailed denials
with respect to later incidents allegedly involving the picture
28When allowance is made for the fact that Shirley Thomas undoubtedly was not as
accustomed to Divine's blustering behavior as was Phillips, I find that her testimony
corroborates that of Phillips , rather than that of Divine . On both her version and that
of Phillips , Divine's apparent anger was not being taken seriously by Phillips. And it
is in keeping with my own observation of the demeanor of Divine and Phillips , that they
would have behaved essentially as Phillips testified that they did, if the converastion
were taking place along the lines of Phillips ' testimony
DIXIE GAS, INC. . 1071
and a woman not his wife, and that Phillips at no time and in no way threatened,
coerced, or attempted any blackmail or extortion of any kind with respect to Divine's
activities concerning the Union by the use of any such picture or item. Accord-
ingly, I find that there is no merit in the contention here under discussion with
respect to objection No. 2.
4. Contentions concerning McDaniel's activities prior to August 25
We come now to contentions respecting McDaniel, beginning with the one that
McDaniel threatened Divine that he would get him and "sweep him out of the shop"
if he did not cease campaigning against the Union. In the next paragraph is the
gist of Divine's version of what transpired one day in the garage at Leland, during
his first "real discussion" involving the Union with McDaniel.
McDaniel accused Divine of putting "the dope out all around" that he was "the
leader" of the Union. Divine denied the accusation and McDaniel, insisting that
he was so telling employees, told Divine "to either fight or go get Carrol Sims,"
one of the Respondent's garage mechanics. Divine telephoned Sims at his home,
and Divine and McDaniel, who were both mad and had been talking in the garage,
went into the office and sat down. Divine then told McDaniel that he remembered
saying to Sims, when Sims had asked him who was the leader of the Union, that
McDaniel "had been back three or four years ago when it come up." When Sims
arrived, Divine and McDaniel simultaneously asked Sims if Divine had said that
McDaniel was the leader of the Union, Divine adding that if Sims remembered
rightly, he "didn't say that." Sims said, "Well, maybe I made 'a mistake." Divine
and McDaniel then walked back into the garage and Divine said, "You see, that is
the way god damn lies get started." McDaniel answered that Sims was "probably
telling a damn lie to cover up for" Divine. There followed a 15- or 20-minute argu-
ment during which each told the other "to go to hell and what he could do."
McDaniel gave Divine "strict orders" not to tell anyone that he was the leader.
He also told Divine that if he did not stop running his mouth off he was "going
to get [his] ass," and that he was "going to come through there like a cyclone one of
these mornings" and that he was "going to sweep the shop clean," including Divine.
Divine said "this is as good a time to start as any" and threatened to hit McDaniel
with a hammer, which he had in his hand. However, there was no actual physical
encounter, only "a lot of rough stuff" in the language used during that argument 2s
When called by the Respondent as a witness, Carrol Sims, who was not eligible to
vote in the election but who later served as an observer therein for the Company,
testified about the foregoing incident, which he placed as "a good while" before
the election, "possibly about 17th or 18th of July." 30 According to Sims, it was
after talking with Divine about who the leaders in the Union were, and after
Divine had said that he thought that McDaniel "probably was the leader because
they had had a meeting a good long time before this, and L. Ray was the spokesman
at that meeting," that Divine had telephoned him to come to the shop to talk with
McDaniel. Upon reaching the office, Divine asked Sims if he had told him that
McDaniel was the leader, and Sims told McDaniel that he had "either misunder-
stood" him or that he had "misquoted Divine on it." I find nothing in the testi-
mony of Sims, who impressed me as a credible witness not opposed to the Respond-
ent's interest, about his knowledge of the above incident which indicates any ill
temper or abusive language on the part of either Divine or McDaniel.
When called as a rebuttal witness by the General Counsel, McDaniel flatly and
convincingly denied that he had ever forced Divine either to call Sims or to fight;
that he had ever told Divine anything like that if he put out anymore dope on him
he had better get out; that he had ever told Divine or anyone else that he was "going
to sweep the shop clean or out" or anything to that effect; and that he had ever
called Divine a "yellowbellied or bullheaded S.O.B." This is the essence of Mc-
29While much of Divine's testimony is ambiguous , both as to time and as to what
should be attributed to the respective events, a reference by Divine to McDaniel having
called him "a yellowbellied son of a bitch" may apply to the above conversation, and it
will be so assumed . However, other testimony of Divine, particularly as to what he
threw up to McDaniel during the later Hico incident, is not credited as having any
relationship to the above incident, which evidently occurred early in the Union's campaign.
na Assuming that this incident did occur that early, and thus about 10 days before
July 27, as I believe quite possible„and assuming also that, as the General Counsel con-
tends in his brief in the C case, "there,'is no evidence of company - knowledge of the
incident in the record,',', said incident is nevertheless, being,fully considered, for reasons
stated above, in section IV, A. -
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Daniel 's testimony as to what occurred with respect to the only occasion "anything
similar" to that pictured in Divine 's testimony . Someone had told him , possibly
Sims himself, that Divine was saying that he was a union leader. McDaniels asked
Divine about it. During their discussion of the matter, Divine denied telling Sims
"anything like that"; McDaniel said that Sims had told him "something in that
line"; and Divine said, "Well, let's call Carrol right now and get that straight."
Divine, whose idea it was ,to make .the call, thereupon called Sims and asked Sims
to come "down there to correct something." According to McDaniel, he was not
mad, Sims was not mad, and as far as he knew, "Divine was not mad."
All factors duly considered, I am convinced that what took place on the occasion
in issue, probably some 6 weeks before the election, transpired substantially as
the essentially consistent and supplementary testimony of Sims and McDaniel
presents it, and that while Divine actually had told Sims that he thought that Mc-
Daniel was a union leader, Sims sought to persuade McDaniel that what he had
heard about it involved a misunderstanding of what Divine had said. In any event,
I am satisfied that all aspects of Divine's testimony as to this incident which might
support the objections merely afford examples of the way in which Divine re-
peatedly, during the course of this testimony, exaggerated, distorted, and embellished
numerous events. Accordingly, I find that the foregoing incident, which I am con-
vinced occurred before Divine became openly active in leading opposition to the
Union, involved no threat against Divine on the part of McDaniel if Divine did not
cease campaigning against the Union; that the incident involved, at most, a nonvio-
lent disagreement between McDaniel and Divine about whether Divine was spread-
ing word that McDaniel was a union leader; and that there is no support in this
incident for objection No. 2.
We next take the incident involving the alleged threat by McDaniel to clean
Carrol Sims and F. E. Poag, two of the Respondent's shop mechanics, out of the
shop, as it seems to be closely related to the foregoing one. There is no testi-
mony by either Sims or Poag that McDaniel ever made such a threat to them.
Holland testified that his shop superintendent, Robert Platte, who was not called as
a witness, upon being asked if it had "ever come to his attention they were going to
sweep our shop out," told him that "he had heard that"; that upon asking Poag and
Sims the same question, "they said maybe not directly, but we have heard it"; and
that Divine had told him that McDaniel was "going to clean out our shop, sweep out
our shop." The gist of Divine's testimony bearing on the above contention is set
out in the following paragraph.
At a point in his direct examination, which appears some 35 pages after his above-
discussed testimony about the incident when he had called Sims to the shop, Divine
was asked several questions about whether anything had also then been said about
"shop employees." Divine eventually answered that McDaniel then also said that
he "was going to clean two guys out," in addition to Divine, and that McDaniel
named Poag and Sims "in particular" when Divine "pressed him for the names "
The foregoing testimony of Divine was not convincing, nor was it strengthened by
cross-examination thereon the following day. In view of McDaniel's above-quoted
denials, and his further specific denial, credibly made, that he had ever told Divine
that he was going to clean out Sims and Poag or anything to that effect, I find that
McDaniel never threatened to sweep Sims, or Poag, or any other employee out of
the shop, and that the evidence as to such contention does not support objection
No. 2.
The contention that McDaniel cursed Poag in a violent manner because of his
opposition to the Union will next be considered. Five witnesses testified as to the
incident, Poag, Sims, Holland, and Divine for the Respondent, and McDaniel for
the General Counsel.
This is Poag's version of what occurred. One afternoon, about 2 or 3 days
before the election , Poag, Sims, and Divine were having a "bull session" in the
office, when McDaniel and Dan Kilpatrick, one of the other drivers, walked- into the
office. Divine asked Poag some question about the Union , and Poag said that he
was not for the Union. McDaniel thereupon spoke up and said, "Poag, you are a
yellowbellied son of a bitch." Poag asked McDaniel what he meant and McDaniel
replied, "I thought you was on our side." About that time, Holland "walks in and
we leave." Poag's version does not indicate that any voices were unduly raised or
that any threatening gestures were made by anyone.
Sims ' testimony corroborates that of Poag 's as to the time and place of the
event , those present , and what McDaniel called Poag . Sims also testified that both
McDaniel and Poag were seated when McDaniel called Poag the name in issue; that
neither of them thereupon stood up; that "everybody kind of scattered out" when
DIXIE GAS, INC. 1073
Holland "pulled up out front"; that he later asked McDaniel "not to curse [him.]
like that"; and that McDaniel had never threatened or cursed him.
Holland testified that as he walked into the office on the occasion in question
"several of them were walking out and by looking at their faces and expressions I
could tell something had happened." Holland also testified that when he later
asked Sims what had happened, Sims told him, "as Mr. Poag testified what had
happened."
According to Divine, he had earlier told Poag that McDaniel was going "to sweep
the seat of his pants out over the shop," and that he was "teasing Poag a little bit"
about that when Kilpatrick and McDaniel walked into the office. Divine at first testi-
fied that McDaniel "jumped up and called" Poag the name in question. He later
testified that McDaniel "leaned up forward in his chair like he was getting up"; that
Poag acted like he was going to fight; and that "there was going to be a fight in about
two seconds" when Holland walked in and "broke it up right there."
McDaniel admitted that in the office "a few days before the election," and in the
presence of Kilpatrick, Sims, and Divine, he had called Poag "a yellowbellied son of
a bitch." McDaniel explained that as he walked in and sat down the Union was being
discussed; that Poag said that "he knew one guy that was having too much to do with
the Union"; that because "several guys had come to [him] before," telling him things
Poag had said about him, he was "a little hot at Poag"; and that he therefore called
Poag the name. McDaniel also testified that both he and Poag were seated at the
time the remark was made and that neither of them stood up.
Accepting Divine's uncontradicted testimony that, at the time McDaniel entered
the picture, he had been teasing Poag about a remark attributed to McDaniel (but
one which McDaniel actually had not made), and further accepting McDaniel's
testimony that reports had been made to him about things Poag had said, I am con-
vinced that Divine's testimony as to Holland's timely arrival preventing a fight which
was in the making serves only to illustrate further the way in which Divine's testimony
repeatedly embellishes and distorts events. However, the credible evidence does
establish that shortly before the election, in a "bull session" in the office, when none
of the participants was at his post of duty, McDaniel called Poag, in connection with
an apparently somewhat heated interchange about the Union, a name which is not to
be condoned; that no physical encounter or threat of physical encounter resulted
therefrom; and that there was no threat of any kind made by McDaniel to Poag,
who was not eligible to vote in the election 31 But we will presently reserve final
consideration of the bearing of the foregoing incident on objection No. 2.
The next contention to be considered, that McDaniel told Divine that he would
be killed if he drove during the strike, rests on testimony of Divine which is flatly
contradicted by McDaniel. The gist of Divine's testimony on this subject is that
McDaniel asked him about "some of that old scuttle" to the effect that he was "going
to drive over the Greenville Bridge" if there was a strike; that he told McDaniel that
he hoped "you all have a strike"; that he said that he was going to drive over the
bridge "regardless of what anybody done" and if he had to shoot his way across;
and that "if they put up a picket in front [he] was going to drive over it." According
to Divine, McDaniel said, "If you go over there you are going to get it, I know that,
even if I have- to do it myself," and further said, "If we are on a strike you are not
going to get back over there alive even if I have to do it myself."
When called as a rebuttal witness, McDaniel, at two separate points during his
testimony, unequivocally and convincingly denied that he had ever told Divine that
if he were to cross the bridge during a strike, someone would get him, or anything
like that or to that effect. I credit McDaniel' s denials and find that McDaniel did
not threaten Divine with physical harm, or tell him that he would be killed, if Divine
drove during a strike.32 Accordingly, any. such contention is without merit with
respect to objection No. 2.
5. Alleged threats to Divine at a meeting on August 25
It was at a meeting in the room of Paul Kuhns and his wife in a Leland motel that
four of the matters specified in the Employer's brief allegedly occurred. At that
meeting, which took place during the evening of August 25, the day before the
a Of the five present, drivers Divine, Kilpatrick, and McDaniel were eligible to vote ;
Poag and Sims , as mechanics, were not in the unit
11 There are also other lesser versions of purported threats by McDaniel in Divine's
ambiguous and repetitive testimony-on the subject, such as "and clean my plow out for
another thing," which have been duly taken into consideration in reaching the above
conclusion.
634449-62-vol. 135-69
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election, it is contended that McDaniel referred to "the picture," in the presence of
Paul Kuhns, giving Divine the alternative of leaving his employment with the Com-
pany or going along with the Union, and that Kuhns, the Union's assistant business
agent and its secretary and treasurer, threatened Divine with having his face caved in;
referred to the picture in an effort to coerce Divine into abandoning his opposition
to the Union; and instructed Divine to mark his ballot with an identifying X.
It has earlier been noted that 2 days before the election, Divine had volunteered to
assist McDaniel and that together they had put up a stove for MMcDaniel's sister.
While moving that stove and putting it up, and while going to and from that chore,
McDaniel and Divine had also discussed the Union. McDaniel told Divine, with
whom the question of seniority had been discussed, that a union representative would
be there the next afternoon, that some of the boys were talking with him, and that he
could probably straighten out two or three matters for Divine. Divine said that he
would like to talk to him. Thereafter, McDaniel arranged with Kuhns for Divine
to meet him; informed Divine of that arrangement; went to Divine's home, appar-
ently not long after 7 o'clock on the evening of August 25; and took Divine in his
car to the motel to see Kuhns.
While there are many flat contradictions in the testimony as to whether or not
certain things took place at this meeting, which evidently lasted about an hour,33 I am
convinced, on essentially undisputed evidence, that Kuhns and his wife were in their
motel room when McDaniel took Divine to see Kuhns; that two of the Respondent's
other drivers, Oliver Edwards and Ralph Compton, joined the four already there
some 5 minutes or so later; 34 that while all six remained during the discussion,
Kuhns, Divine, and McDaniel were the principal participants; and that the discussion
ranged from the prevalence and noisiness of the crickets, through politics and the
weather, to such matters as how the election would be conducted, the advantages of
having a union, what kind of contract provisions the Union might seek to secure if it
won the election, how union security might work under such contract provisions, and
the Union's prospects of securing the votes of some drivers and of winning the elec-
tion. I believe that no useful purpose would be served by trying to reconstruct all
that transpired that evening from the testimony of the five witnesses who were ques-
tioned about it-Divine for the Respondent and McDaniel, Kuhns, Edwards, and
Compton on rebuttal for the General Counsel. Hence we will direct our attention
largely to determining whether or not the discussion, which undoubtedly included
many permissible matters, also included such other matters as those put in issue
in the Employer's brief. We will start with Divine's testimony as to this meeting,
summarizing primarily parts thereof concerned with matters in issue.
According to Divine, they "discussed many issues," including seniority about
which he was concerned, and why "our pay mileage was actually more per mile on a
smaller truck" than at Wheeling Pipe Line, where they were union, Kuhns explaining
that they first had to get a foot in the door and that they were "going to do better
next time." Divine mentioned "a lot of different things that happened all over here
and yonder," and in discussing an outfit, probably in Memphis, Kuhns said that there
if you "said anything about the union that you would get your face caved in or teeth
caved in or something." At that point, Kuhns turned to Divine and said, "I wouldn't
want my face caved in, would you," and Divine said, "No, sir." McDaniel, in "putting
the pressure on," told Divine that he had to go union or leave the Company, and said,
"Divine, you know we got you and ain't nothing you can do about it." Divine
"already knew what he was talking about," namely the picture of him and his girl-
friend. Kuhns also told Divine, " `The boys have got you' or `We know we have got
you' or something to that effect." Divine eventually "bowed over to their way of
thinking," and said that he would go along and that they could put his "name down
to that effect." But even after he "had done broke down and agreed," McDaniel said
that he could not be trusted. So "right in there is where Mr. Kuhns said there is
always one way to find out, something about the x code or something," and explained
that in order to tell how Divine voted, "you can have him to mark his X all the way
across." 35
as Kuhns estimated the meeting about 45 minutes ; Divine at probably an hour and
a half.
Edwards has worked for the Respondent 7 years and Compton about 10 yeiirs
Compton, who had previously met Kuhns, had called Edwards and had told him that he
wanted him to meet Kuhns. I am satisfied, from their credited testimony on the point, that
neither Compton nor Edwards was at the meeting for the purpose of later serving as a
witness, as the Respondent' s brief in the C case contends.
as It should be noted that the above condensation from Divine's testimony presents, as
do other similar condensations, a more cohesive and plausible picture than does the full
transcript of Divine's rambling and sometimes incoherent testimony
DIXIE CAS, INC. 1075
Kuhns, McDaniel , Edwards, and Compton were called as rebuttal witnesses:
Each denied essentially all of the above statements attributed by Divine to Kuhns
and McDaniel which bear materially on the four matters put in issue in the Em-
ployer's brief, as well as several other phrases , such as "taking care of turncoats,"
which Divine also attributed to Kuhns. For instance , Kuhns, whom I had an
opportunity to observe throughout most of the hearing , and who impressed me
favorably , both by his behavior at counsel table and by his demeanor on the witness
stand , denied unequivocally and convincingly that he or anyone else had threatened
or intimidated Divine during the meeting in issue; that McDaniel or anyone else had
said anything like "We have got what we have got" on you to Divine, threatened
Divine with a picture , or said anything about a picture to Divine ; that he had said
to Divine anything like, "I don 't want to get my face beat in , do you"; that he had
told Divine that the boys had him and he might as well go along with the Union;
or that either he, McDaniel , or anyone else had said to Divine, "You know we
have got you, there is nothing you can do about it ." Similar denials were made by
McDaniel , who also specifically and unequivocally denied that Divine had been
threatened , blackmailed , or intimidated in any way at the motel ; that he had told
Divine that they had him and that there was nothing that he could do about it, or
anything to that effect ; that he or anyone else had made any reference, either directly
or in an indirect manner , to a picture or an item ; and that he had ever put any
pressure on Divine to quit his job. No purpose would be served by enumerating
similar and corroborative denials of drivers Edwards and Compton , for even if
only the denials of Kuhns and McDaniel were standing against the testimony of
Divine as to that meeting, I would have no hesitancy in accepting their denials, along
with their explanation of what happened at the meeting, as substantially more cred-
ible than Divine's version.
Moreover , I am convinced , as found earlier herein , that no reference of any kind
to any picture of Divine with a woman not his wife had ever been made by Phillips.
I am similarly convinced that this is also true with respect to McDaniel, whose
denials as to any knowledge of such picture are detailed below , in discussing a
pre-Hico incident . Hence there was not only no veiled reference made by anyone
that night to any such picture , but Divine , never having been shown such a picture,
and never having had such a picture previously referred to by any union leader,
could not have assumed that any ambiguous reference that night referred to "the
picture ." In addition , I am satisfied , from credibly given testimony of Kuhns, cor-
roborated by that of the other three witnesses for the General Counsel , that no one
told Divine to use an identifying mark on his ballot, but rather that it was Divine
who brought up a question as to whether or not a ballot could be marked so as
to be identifiable . For instance, Kuhns explained convincingly , during his cross-
examination , that Divine had done so by asking , "Could you mark a little bitty
X up in one corner and if you were the only one that does that , can 'the company
identify it?"
Everything pertaining thereto being duly weighed , including a number of details
with which I deem it unnecessary to burden this report , I conclude and find that the
credible evidence overwhelmingly establishes that the meeting of August 25, to
which Divine admittedly went of his own volition , involved permissible discussion
of various matters, including union matters of particular interest to Divine , and that
nothing occured thereat of a threatening , intimidatory , or coercive nature which
affords any support for any of the above -summarized four contentions in the
Employer's brief with respect to objection No. 2.
6. The alleged threats to drivers Ware and Cotton
There are two remaining contentions , neither of which involves Divine. Next to
be considered is the contention that driver Hulet Burns threatened driver Luther E..
Ware , the night before the election , that he would be killed if he voted against the
Union . We begin with Ware's version of a telephone call admittedly made that
evening by Burns.
According to Ware, about 9 p.m. on August 25, he received a call from Burns
who, at the outset , asked Ware how he was going to vote the next day. Ware said
that he did not know but could not see voting for something that was going to cut
his salary . Burns then said that he guessed they knew where Ware stood and Ware
said that he guessed they did. Burns further said, "Ain 't you afraid somebody is
going to kill you." Ware answered , "No. You might kill me but you can't eat me."
Burns said there were "some down here that will do it"; told Ware that he could
go to the motel to talk to the unionman there; and asked Ware if he would talk
with someone else on the telephone . Ware said that he would , so Phillips talkwi
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Ware, telling him that he would appreciate it "if you would go along with us
tomorrow." During the telephone conversation, Burns could hear voices of people
at the other end talking in the background.
Burns testified that he, Phillips, and Bobby Coleman were at his home on the
evening of August 25 talking about how the vote would probably go; that Ware's
name came up and something was said about telephoning him; and that he there-
upon made the call, asking Ware whether or not he was going along with the
Union. Ware said that he had not made up his mind. They then talked a little
and he "handed the phone over to Joe." Burns flatly and convincingly denied that
he had said anything like, "Aren't you afraid someone will kill you," or that they
had people down there who would, or that he had in any way threatened Ware
during that conversation.
The foregoing testimony of Burns as to the telephone conversation is essentially
corroborated by that of Phillips and Coleman. Phillips testified that he had heard
Burns make no such threat as the above, and that neither he nor Burns threatened
Ware in any manner during that telephone call. And Coleman, who impressed me
as being a forthright witness, testified that he was in a position to hear what was
said by Burns and Phillips and that neither Burns nor Phillips had said what is here
in issue, or anything like it.
It has earlier been noted that Ware is one of the drivers associated with Divine
in the antiunion club; that he was carrying a gun; and that Holland considered him
,,on our side ." 36 In view of the testimony as a whole, especially the credited denials
of Coleman, Burns, and Phillips, I am convinced and find that what occurred dur-
ing the telephone call of August 25 to Ware was permissible campaigning; that no
statement was made to Ware during said call by Burns or anyone else to that effect
that Ware would be killed or harmed if he did not vote for the Union; and that the
credible evidence as to said telephone conversation affords no support for objection
No. 2.
The contention remaining for consideration is that Phillips had an intermediary
convey to driver John Cotton a message to the effect that Cotton would be run off
the road if he did not vote for the Union. Concerning this contention, about which
there is flatly contradictory evidence, Cotton, another driver who was also asso-
ciated with Divine in the antiunion club, who carried a gun, and was for the Com-
pany, gave the version of events related to this contention set out in the next
paragraph.
Sometime around the first of August, a waitress named Louise, at Al's Truck
Stop,37 told Cotton "that Joe Phillips had been in there and had told her to tell"
him that if he did not vote for the Union in the election that "he would run me off
the road." 38 On a day thereafter, also somewhere around the first of August, when
Cotton and Phillips had stopped on the road,39 Cotton confronted Phillips with what
Louise had told him. Phillips said that he had told Louise that "he wouldn't run
me off but other union drivers would." During their roadside conversation, Phillips
also told Cotton, who was never asked to sign a union card, that he was not being
asked to sign one because they "didn't want to involve me in it on account of I was
under bond down there on that wreck." 40 Later, Cotton had another conversation
with Louise, which took place a week or 10 days after the election. On that second
occasion, also at Al's, Louise told Cotton that "some fellow Joe" had telephoned a
8"See footnote 20, supra.
8' Herein called Al's, which is not to be confused with Bell's, as Al's Is in Arkansas,
on Highway 82, near Lake Village While Cotton was unable to give the last name of
the witness involved, he described her, and it is clear from all of the evidence that
Louise Burgess, who was later called as a witness by the General Counsel and was the
only Louise working at Al's during the period involved, is actually the waitress about
whom Cotton testified.
38 The last quotation is the third form of the threat to appear in half a page of Cotton's
direct examination, the first being "I would be run off the road," and the second that
"we would be run off the road "
3D Both men were then loaders and had long known each other, as Cotton was the top
driver in seniority and Phillips was third from the top among the Respondent' s drivers.
*° Cotton admitted being under what he referred to as a "bail bond or appearance
bond," which had been posted by the Respondent's insurance company in Louisiana be-
cause of Cotton 's "wrecking a truck," in connection with which a "man died 11 days
after the wreck." I am convinced from Cotton's own testimony that he was uncertain
of his position, not knowing whether or not the "bondman would forfeit my bond if
I had signed a union card," and that he discussed his problem in that respect with the
other drivers , including Phillips.
DIXIE GAS, INC. 1077
message that "if I would go along with the union it would be a whole lot easiet on
me." Cotton never confronted Phillips with this second conversation with Louise41
Upon being questioned initially on this subject, by the Respondent during cross-
examination, when Phillips first took the stand in the General Counsel's case-in-chief,
Phillips testified that he had not known any waitress by the name of Louise who had
worked at Al's; that he had never told any waitress, Louise or anybody else, to
convey a message to Cotton such as that "they say that if you don't go along with
them and vote for the union they will run you off the road"; and that he had never
had a conversation with Cotton in which such a matter was brought up. When
called on rebuttal by the General Counsel, Phillips unequivocally denied that he
had "ever told the waitress at Al's" or anyone else that if Cotton did not vote for
the Union he would be run off the road or anything like that; that Cotton had ever
accused him of making any such remark; that he had ever told Cotton that he
"wouldn't run him off the road but other union drivers would"; and that he had
ever called a waitress at Al's to leave a message for Cotton or to make any remark
about Cotton or the Union.
This is the gist of the testimony which Louise Burgess, the only waitress named
Louise at Al's during the material period, gave when called as a witness on rebuttal
by the General Counsel. Louise testified that she was acquainted with Cotton, but
that she had not known and did not know Joe Phillips. She flatly denied ever telling
Cotton that Joe Phillips had said that if "Cotton did not vote for the Union he would
be run off the road," and ever telling Cotton "anything about him being run off the
road " On cross-examination, Louise Burgess did testify, however, that "around the
last of August," someone, who identified himself only as "Joe," telephoned Al's;
asked if she "knew Cotton that drove for Dixie"; told her, when she said that she
did, to tell Cotton that "if he knew what was good for him that he would join the
union"; and that she did so.
Burgess impressed me as a forthright witness, and I credit her testimony. She
completely corroborates the consistent and convincingly given denials of Phillips
that any such message as the alleged one around the first of August about Cotton
being run off the road was ever given by Phillips to her for transmittal to Cotton.
Accordingly, I find that no such message ever was transmitted to Cotton by Burgess.
As to the telephone call from some "Joe," which waitress Louise Burgess did re-
ceive at Al's and transmit to Cotton, I am convinced and find, on all of the evidence,
that said call was actually made at least several days after the election; that there
is nothing in the evidence which warrants any inference that the "Joe" who called
was Joe Phillips, or that said semianonymous caller was an agent for or acting on
behalf of the Union; that what "Joe" said was as Burgess testified, rather than as
Cotton, namely that if Cotton "knew what was good for him that he would join
the union"; and that Cotton never reported it to the Company. In view of all of
the foregoing, I conclude that at no time, either before or after the election, did
Phillips have a threat conveyed to Cotton that he would be run off the road if he
did not vote for the Union; that nothing of that nature occurred which could have
had any bearing on the election; and that the credible evidence as to said contention
affords no support for objection No. 2.42
Before reaching our conclusions as to objection No. 2, a matter not advanced in
the Employer's brief will be noted to illustrate numerous bits of undiscussed evidence
which have nevertheless been duly considered in connection with both the R case
and the C case. Holland testified that either Ware or Divine, he could not remem-
ber which, had told him while he was doing the dispatching before the election,
that "they were going to doctor Bowman's motor" and were going to "make it so
41 Nor is there any evidence that Cotton, who had insisted to other drivers, in terms
similar to Divine's, that he would drive during 'a strike regardless, ever reported any
such postelection threat as the above to Holland, who testified only that "in the early
part of August" Cotton had told him that "he had been told or threatened" that he would
be "run off the road" if asked to drive during a strike Holland did not testify that
Cotton had told him the source of that threat, nor was Holland sure, as noted above, in
section III, C, whether it had been Cotton or Divine who had told him about the threat
that he had asked Phillips about before the election
42 It will expedite matters later to be consideied to add now also that nothing in the
above-discussed evidence, particularly in view of Phillips' credited and consistent denials,
establishes that any unprotected concerted activity was engaged in by Phillips, either
before or after the election, in connection with telephone calls testified to by Cotton,
even assuming that the Respondent learned about the semianonymous telephone call from
"Joe" which was transmitted by waitress Louise Burgess to Cotton after the election.
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expensive that the company would not be able to retain him." 43 I find no testi-
mony by either Ware or Divine that they made such a report to Holland, or that
anyone ever made such a threat to either of them about Bowman. Nor was Bowman
asked about any such threat when he testified. Moreover, when called on rebuttal,
Bums, Phillips, and McDaniel each credibly denied that he had ever stated to any-
one that he was going to doctor Bowman's engine or motor. Accordingly, I find
that, whatever Holland may have been told about Bowman's motor being doctored,
the record affords no support for inferring that any such threat was ever made by
any of the dischargees or by anyone representing the Union. I also find that no
purpose would be served by going into numerous other bits of evidence, not dis-
cussed in this report, because my analysis of the record as a whole, including denials
therein, convinces me that nothing of substantial weight pertaining thereto is in-
volved with respect to any of the issues in either the R case or the C case.44
7. Conclusions as to objection No. 2
A review of all that has been found hereinabove, with respect to the contentions
considered under objection No. 2, shows that only one thing occurred which might
be a matter of substance, the name calling of Poag by McDaniel shortly before the
election. But in conjunction therewith, we must also consider the contention in
the following paragraph, with which the "Discussion" section in the Employer's
brief concludes:
That there was an atmosphere of tension and fear which made a free election
impossible is amply demonstrated by the circumstance that Magruder, a Labor
Board Field Examiner of many years' experience, very shortly after the elec-
tion, requested the intervention of civil authorities in an effort to calm the
employees and prevent possible bloodshed.
We will consider the contention in the above paragraph first. The facts concern-
ing the meeting of September 10, 1960, called pursuant to the above-referred to re-
quest, have been spelled out, in section III, C, in the paragraph which includes
footnote 14. I find it of particular significance that the drivers who were at that
time known to be carrying guns included Divine and some of those associated with
him in opposing the Union, and that Bums, Phillips, and McDaniel were not carry-
ing guns. Since the gun toting, which led to the meeting addressed by Sheriff
Hollingsworth, was not being engaged in by the Union's leaders, but rather by some
of those leading the opposition to the Union,45 and since Divine formed the anti-
union club after the election, I am not satisfied that tension and fear caused by
union activity before the election is evidenced by that gun toting, especially since it
is at least as reasonable to infer, among other things, that guns were being carried
to impress union adherents with the likelihood that admitted threats to shoot one's
way through a union picket line during a strike actually would be carried out. In
any event, Holland testified that he did not think his men were afraid.
This leaves the admitted name calling by McDaniel. The details as to this
incident have been fully discussed hereinabove,46 and need not be recounted now.
There was some provocation for the name being called; said name calling did not
lead to any violence; and Poag was not eligible to vote. Hence, while such name
calling is not to be condoned, it is my carefully considered opinion that, regardless
of whether or not McDaniel, under all of the circumstances prevailing in this case,
can be considered an agent of the Union, we have too trivial an incident, when the
total frame of reference is considered, to constitute sufficient disturbance to the_
"laboratory conditions," which the Board seeks to preserve, to warrant setting the
election aside on that ground. Accordingly, everything duly considered, I conclude
and find that, as a matter of law, objection No. 2 should be overruled because of
failure of the proof to show threats of personal or bodily harm preventing un-
hampered casting of ballots.
In view of all of the foregoing, if the Board intended, by transferring Case No.
26-RC-1457 to me in its order of March 29, 1961, that ,I make definitive findings as
to said case, and if the Board did not , in said order, intend to rescind its overruling
's-Compare footnote 9, supra, as to why Holland testified that be had locked the gates
after the election.
"Included are vague or unconvincing references in Divine's testimony about state-
ments as to how his house could be burned.
's See footnote 20, supra, and the latter part of the paragraph in which it appears.
is See particularly the paragraph including footnote 31, supra, and also the five para-
graphs preceding it.
DIXIE GAS, INC. 1079
of objections Nos. 1 and 4, in footnote 1 of its February 17, 1961, order directing
hearing, my recommendation would logically follow that the Board overrule the
Employer's objections in their entirety, and certify the Union as the exclusive bar-
gaining agent in the appropriate unit. However, if the Board intended only that
I make "appropriate findings of fact and law" as to objections Nos. 2 and 3, this
has been done.
VI. THE UNFAIR LABOR PRACTICES IN CASE NO. 26-CA-962
A. The discharges of McDaniel, Phillips, and Burns
1. Initial observations and conclusions
The way in which Curry Holland, the Respondent's vice president and general
manager, discharged drivers L. Ray McDaniel, Joe T. Phillips, and Hulet C. Burns
on September 22, 1960, and the general frame of reference in which said discharges
occurred, have been described hereinabove in section III, C. Further, in section IV,
A, in making some general observations concerning the issues in both cases, I
have already explained why the 8(a) (3) issues in the C case will be considered
before the 8(a) (1) issues, and why the decisional requirements in the R case with
respect to the conduct of the dischargees before the election now make the prob-
lem of determining the 8(a) (3) issues a less involved one, if the test applied is that
of the actual guilt of the dischargees, rather than whether or not the Respondent
had a good-faith belief as to their guilt.
It will be remembered that Holland testified that he discharged McDaniel, Phil-
lips, and Burns because he believed that "every bit of the threats, violence, threats of
violence and the blackmail that happened in the company was traced to those three
men." It is my carefully considered opinion that all aspects of the conduct of Mc-
Daniel, Phillips, and Burns, which can have any material bearing on questions as
to whether or not any of them actually engaged in any unprotected concerted activity
before the election, have been fully considered in section V in determining the
facts as to what transpired during the preelection period. Let us apply now the
actual guilt test to all of the facts of said conduct of the three dischargees before
the election, ignoring questions as to what aspects of said conduct the Respondent
may not have learned about prior to making the discharges. What we find is that
neither Phillips nor Bums engaged in any conduct before the election which was un-
protected. Moreover, the only conduct of McDaniel before the election which re-
quires consideration here is that he called Poag "a yellowbellied son of a bitch,"
under circumstances which have been described in section V, B, 4. As to that inci-
dent, about which Holland did learn shortly after its occurrence, no violence or dis-
ruption of production was involved, and I am convinced that, all of the sur-
rounding circumstances considered, the name which McDaniel called Poag during
a somewhat heated bull session involving the Union, although not to be con-
doned, did not render McDaniel's activity on that occasion unprotected 47 It ac
cordingly is concluded and found that none of the three dischargees, McDaniel,
Phillips, nor Burns, was guilty of engaging in any unprotected concerted activity
prior to the election.
From the chronology of postelection events and developments, presented in
section III, A, it is evident that two incidents involving allegedly unprotected activity
remain for discussion, one shortly after the election, during which the Respondent
contends that Burns "threatened Bowman with loss of employment," and the Hico
incident of September 2, involving all three of the dischargees and Divine, which
the Respondent's brief in the C case characterizes as "a near violent three-on-one
altercation at the Hico refinery" in Louisiana49
Were we deciding the 8(a) (3) issues on a basis involving the Respondent's good-
faith belief or lack of it, the first of the foregoing two incidents might well be one
of those which appropriately could be dealt with on the basis of lack of knowledge.
The Respondent's brief, in asserting what Holland was aware of after "reading the
draft of the affidavit which Divine gave to Magruder," adds the phrase, "with the
probable exception of the threat to Bowman by Burns," and I find no evidence that
44 See Ekco Products Company (Sta-Brite Division), 117 NLRB 137, wherein a dis-
cussion of "Scurrilous name-calling," at pages 229 to 231, includes a number of names
similar to the one used by McDaniel
48 What has been said in footnote 42, supra, and in the paragraph to which said foot-
note is attached, concerning a telephone call from "Joe" after the election, is herewith
incorporated by reference.
v
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Holland knew of this incident at the time he discharged Burns. However, since
decision as to the 8(a)(3) issues herein will not turn on the Respondent's belief,
but rather on the actual conduct of the dischargees, I deem that consistency re-
quires that the facts as to this incident also be determined, especially since failure
to do so could leave reinstatement rights as to Burns uncertain.
2. The contention that Burns threatened Bowman
This is the essence of the testimony of K. W. Bowman, a witness called by the
Respondent, who has been one of its truckdrivers for 4 years. The day the men met
"at the plant waiting to hear a talk by some law enforcement people," 49 Bowman,
who had seen a notice on the bulletin board about Burns wanting to sell his house,
had a conversation with Burns in the office, during which he asked Burns if he had
sold his house yet. Burns replied that "he didn't need to sell his house" and that
it was Bowman who "wouldn't have use for [his] house after the union went in."
Bowman, who had made it public that he was "strictly against" the Union, took
Burns' answer, which was made "in a friendly like" manner, to be "just a peck of
foolishness." He did not take what Burns said as a threat because he "wasn't even
thinking about him meaning it that way," and when Holland asked Bowman if
"anyone had ever said anything out of the way" to him, Bowman told Holland that
"they had not." 50
Divine's version of the conversation in issue coincides with that of Bowman as
to time, place, Burns' previously posted notice, and Bowman's question, but has
Burns replying, "god damn it, I don't have to sell my house, but when this union
takes over, you won't be needing yours."
Burns testified that the only conversation he could remember having had with
Bowman about selling his house took place when quite a few of the drivers, in-
cluding Coleman, were sitting around at Webb's Cafe following the election, after
Holland "had fastened up the gates out there." Burns also testified that Bowman
asked him something about whether he had sold or was still going to sell his house;
that he believed that Bowman was then "kind of upset about the gates being fas-
tened"; and he did not remember just what he had replied, because it was such
a short conversation and he had been talking to someone else when Bowman had
come into Webb's. Burns unequivocally denied, however, that he had threatened
Bowman during that conversation.
Driver Bobby Coleman, placing the conversation in Webb's Cafe the day of the
election, testified that when Bowman asked Burns if he had sold his house yet, Bums
replied, "I have had one bite but he is in the same shape I am in." Coleman also
testified that while he was at the plant 2 weeks later, when the sheriff spoke, he
was not present during a second conversation between Burns and Bowman about
Burns selling his house.
All factors duly considered, I am satisfied that a conversation between Burns and
Bowman about Burns' selling his house took place at Webb's shortly after the
election, as Burns testified; that what Burns replied was essentially what Coleman
testified; and that said conversation accordingly involved no actual or implied threat
of any kind. Further, while I am not convinced that a second conversation on the
same subject actually took place 2 weeks later in the office, I do not rule out the
possibility that Bowman may have asked Burns about selling his house on a second
occasion. But if Bowman did so, I am convinced that any reply by Burns was
couched in words more nearly like those appearing in Bowman's testimony, than in
Divine's; that such a reply was not made in anger; that no threat was thereby in-
tended or understood; and that no more was involved than banter. Finally, I con-
clude and find that the evidence as to this incident does not support the contention
that Burns threatened Bowman with loss of employment, or afford any basis for
holding that Burns thereby engaged in unprotected concerted activity.
49 As earlier noted, such a talk took place on September 10
so The above quotations are from testimony of Bowman during both his direct and his
cross-examination Bowman also testified that McDaniel had called him on the night
before the election to invite him "over to meet a union man" , that McDaniel had not
threatened him in any way during their telephone conversation; and that he had asked
McDaniel "who would pay the house payment whenever the union decided to call a strike."
Although Bowman was associated with the group opposed to the Union, he was not
among those known to Holland to be carrying guns.
DIXIE GAS, INC.
3. The Hico incident and its background
1081
We come now to the Hico incident, which occurred on September 2 at the re-
finery of the California Company near Hico, Louisiana, of which the Respondent is
a customer. This incident also embraces two subsidiary matters which occurred
shortly before September 2. The evidence pertaining to this group of incidents is
quite extensive and involved, and the testimony often is inconsistent or flatly con-
tradictory. Were any R case questions now involved, or questions as to the Re-
spondent's motives, or what Holland may have been told, or reasonably could have
believed about what happened at Hico, it might well be desirable to go into the
ramifications of the evidence in greater detail than I deem is now required. But
since the only matter for determination now is whether or not the three dischargees
engaged in unprotected activity in connection with the Hico incident, I will try to
avoid protracting this report with details not necessary to that determination. We
will consider the two subsidiary incidents first.
a. The two subsidiary incidents
Roy Ezell, a witness called on rebuttal by the General Counsel, works as a
gasman at the Hico refinery, loading trucks for some 20 drivers of its customers,
including drivers of the Respondent who have the morning runs as loaders. Ezell
testified that one morning around the first of September he had [a conversation
with Divine at a truck rack at the refinery; that Divine told him that he was "going
to beat the hell out of the next truck driver that came in"; and that upon being
asked who he meant, Divine said that it was Burns. Ezell also testified that Bums
came in later that same day, after Divine had left, and that he told Burns that
Divine had said that he was "going to whip the hell out of him."
The substance of several variations in Divine's testimony as to what he had
told Ezell during that prior conversation is that if any unionman tried to force
him into the Union, even Burns, whom he referred to as "Tough Boy," he was
going "to get him," even if he had "to put some shot in the seat of his breeches."
Burns testified that on the same day as the Hico incident, Ezell told him that Divine
was "in here after [him] the other day"; that Ezell said that he did not know why;
and that Ezell said "he was going to get me, or something. I don't know whether
he said kill me or ship me or something."
The word "ship" in the foregoing quotation is referred to in the Respondent's
brief as an error which was meant to be "shoot," but it could also be meant to be
"whip." In any event, I am of the opinion that shortly before September 2, when
Divine was saying something to Ezell concerning the Union, he told Ezell that he
was going to whip, or beat, or shoot, or kill Burns; that Divine may well have used
any or all of those words; and that sometime before the actual Hico incident, Ezell
told Burns the substance of Divine's threat.
The second of the prior events apparently occurred on Thursday, September 1.
This is the gist of Divine's version Hof it. That afternoon outside of the shop, Divine
and McDaniel had a conversation during which they reached an agreement as to
what Divine would have to do in order to get "the picture." Divine was to tell an-
other driver, McDill, that Curry Holland had "bought off" three or four men by
giving them $500 each; Divine also was to quit his job and leave after he "got the
picture the next day." Later that afternoon, Divine saw McDill and told McDill
what he had agreed to tell him. Divine also asked McDill "not to tell anybody no-
where until after the next day" about it, as he had "agreed to skip out on that week-
end" and wanted McDill to wait until after he was gone.51 About 9:30 that evening,
Divine and McDaniel, pursuant to arrangement, met again in front of a church.
Divine asked for the picture, but McDaniel first "wanted a tape recording made"
of what Divine had told McDill, with an opening remark asking "if he got his regis-
tered mail yet." So Divine agreed to go home and await a telephone call from
McDaniel, who later called to let Divine know that he was ready to proceed.
Divine then hung up and called McDaniel, whose wife answered the telephone.
After identifying himself, Divine followed the instructions, mentioning the regis-
tered mail and giving a statement which included that he had heard "Holland talk-
ing to ^a farmer or somebody around there" and grumbling about having "to pay
$500 to buy three or four men off and make it look like that is why he wanted a new
election." When the part to be recorded was finished, they talked a little and
McDaniel then played back the recording which he had made of what Divine had
said.
51 It should be noted that M6Di11 was never called as a witness.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McDaniel, when called on rebuttal, flatly denied that he -had ever told Divine to
tell anyone that Holland had bought off three or four men for $500, or anything
like that; that he had ever had a recording machine in his house; that he had ever
recorded any conversation which he had had with Divine; that he had ever told
Divine that he had recorded such a conversation or played a recording of something
Divine had said to him; that he had ever promised to give Divine a picture if he
would do certain things; and that he had ever had a picture of Divine and a woman
not his wife, or had ever told Divine or anyone else that he had ever had such a pic-
ture, or that he had even seen , or had any knowledge of, such a picture.
This is the substance of McDaniel's testimony as to a telephone conversation with
Divine. Around 10 o'clock one night, while McDaniel was in the bathtub, his wife
answered the telephone, brought it to him while in the bathtub, and he talked with
Divine. Divine told McDaniel that he wanted to tell him "something as a friend";
that the Company "had bought off three men and they had $500 in their pocket"; and
that the best thing for McDaniel to do was "to leave the country" because he was
"blackballed from coast to coast." Divine also told McDaniel that they were check-
ing up on his "income tax and arrests and stuff like that" and that someone was fol-
lowing McDaniel and knew every move that he made.
Mildred McDaniel, L. Ray McDaniel's wife, was called as a rebuttal witness by
the General Counsel. She testified that one evening after the election, when her
husband was in the bathtub, Divine called around 10 o'clock and that she handed
her husband the receiver so that he could talk to Divine. Mrs. McDaniel denied that
anyone had recorded that conversation, that there was a tape recorder of any kind
in her home, and that anyone had called Divine back later that night from her house.
Mrs. McDaniel impressed me as a truthful witness and I credit her testimony. More-
over, McDaniel impressed me as a substantially more truthful witness than Divine,
and I am convinced, as has been found hereinabove, that no such picture as Divine
repeatedly referred to in his testimony had ever previously been mentioned to Divine
in any of the already-discussed incidents. Hence, having duly weighed all factors, I
conclude and find that McDaniel and Divine never entered into any understanding
involving such a picture; that the telephone conversation which took place just prior
to Hico was along the lines testified to by McDaniel; that there was no tape recording
made of said telephone conversation; and that rather than going to Hico on Septem-
ber 2 expecting to receive from McDaniel the much-discussed picture, which the
record fails to convince me ever existed, Divine went to Rico that day, after having
expressed a threat to Ezell about Burns, and after also having tried some of his
"scare talk" on McDaniel during their telephone conversation. In short, I am con-
vinced that Divine, the leader of the antiunion group, who had told Holland that he
would not work under a union and who had given the Company attorney a two-page
affidavit on August 30,52 was then trying to put pressure on the Union's leaders,
rather than the other way around.
b. The Hico incident itself
Around 9 o'clock on Friday, September 2, Divine and Kilpatrick, who were driving
together that morning, reached the Hico refinery and Ezell started loading their
trucks, an operation which takes around 30 minutes. Only two trucks can be loaded
at one time, and McDaniel, Burns, and Phillips arrived while the first two trucks
were being loaded. Kilpatrick apparently left when his truck was loaded. There
are innumerable conflicts and inconsistencies in the testimony of the five witnesses
who testified as to the Hico incident, Divine for the Respondent, and Ezell, McDaniel,
Burns, and Phillips, for the General Counsel. All of their testimony has been pains-
takingly considered. Based on a clear preponderance of the credited testimony, I
am convinced that, except for -one period of tension, initiated when Burns inquired
of Divine about the threat of which Ezell had informed him, the Respondent's
drivers were talking in such a relatively casual and kidding way that precise details
as to time, sequence, placement of individuals, distances, and who came and went
where and when, could be remembered differently by truthful witnesses. From my
study of all the evidence, I find that the following is the general pattern of events.
While Divine's truck was still being loaded, a discussion got underway at a nearby
loading shack, initially between Divine and McDaniel, about election predictions
which Divine had made. Divine produced a paper upon which he had recorded said
predictions by individuals. Divine showed his predictions to the other drivers and
62 It will be recalled that the objections to the election were filed on August 31, and
that McDaniel and Burns had served as the Union 's observers during the election. It
should be noted that prior to the Hico incident, McDaniel had received a letter from the
Company's attorney saying that it "was filing objections."
DIXIE GAS, INC. 1083
they discussed them. It appears that Divine's predictions had proved essentially
accurate. I see no point in going into the details of this discussion, as Divine willingly
produced his list and discussed his forecasts, and while there apparently was kidding,
banter, and speculation in connection therewith, there were no threats, demands, or
acrimonious interchanges.
Divine did not leave as soon as his truck was loaded, but moved it to a point some
2 or 3 truck lengths down the road from the loading rack, and remained for some
time while other trucks were being loaded. It was in the vicinity of Divine's parked
truck that further conversations took place among Divine, McDaniel, and Phillips,
which were interrupted by Burns making inquiry of Divine as to what he had
threatened to do to him. Since I am convinced that the crux of the Hico incident
falls really into two parts, what occurred during the aforesaid interruption, and
what took place among Divine, McDaniel, and Phillips at Divine's truck, we will deal
with the interruption first, in order to preserve continuity in our discussion.
While Divine, McDaniel, and Phillips were engaged in conversation, Burns came
to where they were at Divine's truck. The details as to what thereupon transpired
are varied, but the overall pattern is reasonably clear, and I am convinced that the
weight of the credible evidence shows essentially these material developments. Burns
demanded to know whether or not Divine had told Ezell that he was going to shoot
him or kill him. Divine denied making any threat in the terms in which Burns put it,
and insisted that they check with Ezell. The four drivers, with Divine in the lead,
went to see Ezell. Divine asked Ezell if he had told Burns that he "was going to kill
him." Ezell replied that he had not and then turned to Burns and told him that he
had no business getting him involved. Ezell, without specifying either what Divine
had told him or what he had thereafter told Burns that Divine had said, also told
Burns that he "only did it as a man" and that he did not appreciate "being brought
into it." Nothing further was said, and within "a few minutes Divine cranked up his
truck and drove off the California premises," leaving McDaniel, Phillips, and Burns
to get their loads of gas.53
While tension obviously was generated by the above incident, I am convinced that
it was only a brief flareup, that no physical encounter of any kind took place or was
even imminent, and that no threat of any kind was involved, other than the one which
Burns was inquiring about Divine having made to Ezell concerning him Ezell did
not testify that he subsequently lodged any kind of complaint about the incident, or
that his work of filling trucks had been interrupted, and it would appear that Divine
was the only driver of the Respondent who was delaying his return after his truck
had been filled. Further, while I am not certain just what Ezell had told Burns that
Divine had said, he patently relayed a threat of some form of bodily harm, whether
whipping or shooting Moreover, it does not seem to me unreasonable for a truck-
driver to want to get to the bottom of any reported threat of physical harm by
another driver, especially when there is no reason to believe that Burns should have
concluded that the individual who relayed that threat to him was an unreliable gossip
or troublemaker. Everything considered, I am convinced and find that nothing in
Burns' behavior during the Hico incident takes his activity outside of the protection
of the Act 54
We come now to the discussion at Divine's truck among Divine, McDaniel, and
Phillips, which will be considered without attempting to determine at what point it
was interrupted by the foregoing incident. Herewith are pertinent highlights of
Divine's testimony as to this phase of the matter in narrative form.
Upon first meeting McDaniel at the refinery on the morning of September 2,
Divine was alone with him for a few minutes and asked for the picture. McDaniel
said that there were too many people around and to wait a little. The discussion of
Divine's election predictions followed and thereafter, when his truck was loaded,
Divine asked McDaniel where he was going to see him to get the picture. McDaniel
said that he could pull his truck off down to the side, so Divine pulled his truck 100
to 150 feet from the rack, where McDaniel joined him. Divine said that he had
fulfilled his end of the bargain, had made preparations to leave Sunday, and wanted
the picture. McDaniel told Divine that he was a bigger fool than he thought if he
believed that he was going to give Divine the picture and let Divine "slap a blackmail
The quot^tions in the above noragranh are from credited testimonv of Ezell, who
also testified in contradiction to Divine but in agreement with McDaniel and Burns, that
he did not attempt to run from Divine.
54It should be noted that while Burns denied any knowledge of the picture and that
he made threats such as those later discussed in connection with the Hico Incident,
Divine's own testimony absolves Burns from participation in discussion of such matters
at Hico.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge" on him . McDaniel said that he "would get them and burn them " so that
Divine could see him do so, but that "giving them" to Divine was "out of the book."
There was a lot of discussion between McDaniel and Divine on the matter , and one
of them "hollered for Joe to come down ." Phillips joined them at Divine 's truck,
and the three talked about different things that had been agreed to . McDaniel and
Phillips "blowed up," and Divine "called them a lot ," including that "they was rats
and they was crooks and everything else." Divine kept asking for the picture and
"Joe knew about it." They "discussed everything that had ever been discussed
before," and McDaniel and Phillips were "bringing up everything" that Divine had
ever done , and somehow Burns got called down, but "actually the picture part was
over when Burns come down there." The Burns interlude then followed, during
which Divine got so mad that he could not tell everything that was said . However,
after the discussion with Ezell at the loading shack , McDaniel, Phillips, and Divine
left to resume their argument . At some point, the affidavit which Divine had given
to the Company's attorney became the focus of the discussion . 55 While Divine had
first flatly denied having given one, when McDaniel first broached the subject, near
the shack before going down to Divine's parked truck, Divine eventually admitted
that he had given the affidavit, after Phillips had told Divine that they knew about
it because Divine was being followed. Divine was questioned about what he had
put in his affidavit , but he told McDaniel and Phillips just as little as he could.
During the second phase of the discussion by Divine's truck, McDaniel used the
affidavit "for an excuse why he wouldn't settle with" Divine on the picture. But
eventually, after still further questioning about what Divine had put in the affidavit,
it was agreed that Divine would secure a copy of the affidavit , and in return he
would be given the picture.56 But despite that agreement, the argument continued,
with Divine telling Phillips and McDaniel "what dirty low down rats they was, a
bunch of sneaks, no good, and everything that could be said." McDaniel thereupon
called Divine "a yellowbellied son of a bitch." Divine "told them on the end" that
it was time to find out if he was yellow and "pulled a .38 pistol out of [his] belt on
them." Phillips grabbed McDaniel by the shoulder and jerked him "back and kept
him from getting shot."
McDaniel specifically and convincingly denied having had any conversation with
Divine about a picture the day of the Hico incident. The detailed denials of both
Phillips and McDaniel as to any knowledge of any such picture have already been
noted in connection with previous incidents . I am convinced and find that there was
no discussion of "the picture" during the Hico incident on September 2, just as there
had been no previous arrangement to give it to Divine that day. Further, Divine
did not pull his truck to the side of the road to get the picture from McDaniel, nor
was any of the discussion which did take place concerning Divine's affidavit among
the three in any way related to such a picture, McDaniel specifically and credibly
testifying that he did not promise to give Divine the picture if he would secure the
affidavit. In short, whatever took place, the picture was not involved in the Hico
incident at all. But there was discussion of Divine's affidavit and of tape recorders
among Divine, Phillips, and McDaniel at Hico, and we now turn to the versions of
McDaniel and Phillips as to that discussion.
This is the gist of McDaniel's version of that part of the Hico incident now being
considered. Having discussed Divine's election predictions at the shack, Divine said
"something about signing an affidavit against Phillips." McDaniel asked Divine to
tell Phillips about it. So Divine and Phillips talked a little about why Divine had
signed an affidavit. McDaniel told them that he did not believe that Divine had
done so, and Divine "told us he would get us a copy of it." Phillips told Divine that
he had not threatened him and Divine said that it might have been a misunder-
standing . At some point, Phillips mentioned "something about somebody could
have a tape recorder." and McDaniel said that "someone could be taping" the
telephone calls that Divine had been making . Divine said that he "had a tape
recorder" and that if McDaniel's "tape didn 't stand up like his, somebody was telling
a lie." Following the Bums' interlude , which was the only "unpleasant element" that
day, McDaniel, Phillips, and Divine "talked a little while longer and Divine left."
Otherwise they had been just laughing and talking; McDaniel had not been mad;
55 The relationship of the affidavit to the rest of the sequence is particularly difficult to
establish because there was no mention of it whatsoever in Divine's first narration of the
Hico incident
56 According to Divine, when he thereafter tried to keep his part of that agreement, he
was unable to secure a copy of the affidavit from the Company's attorney, and therefore
believed that there was no use going to Webb's Cafe, where he was to show the affidavit
and get the picture.
DIXIE GAS, INC. 1085
he did not call Divine "a yellowbellied S.O.B."; be did not tell Divine that he was
being followed; and Divine did not pull a gun on McDaniel or on anyone.
Denials of Phillips which are related to Divine's testimony as to the Hico incident
include that he did not tell Divine that he was following him; that he did not hear
anyone threaten Divine or attempt to blackmail or intimidate Divine; and that he
did not threaten Divine. Phillips' version of the now-pertinent part of the Hico
incident comes down to this. He was motioned to the back of Divine's truck by
Divine and McDaniel, and when he got there, McDaniel told Divine to tell Phillips
what Divine had been telling him. Thereupon Divine commenced laughing and said,
"Well, I didn't exactly have a warrant made out for Joe for threatening me. I made
out something to that effect." Phillips said, "Roy, if you did I would love to know
what it was." Divine said that Phillips would recall that one time he had made
some remarks that if Divine hauled gas "during a strike that it would be very
unpleasant," adding that he did not recall making a statement in the affidavit that
Phillips "would do bodily harm to him." Phillips said that he did not believe that
Divine had made any affidavit, and Divine said that he could "prove it" and would
get a copy from "our attorney and let you look at it." McDaniel and Divine also
discussed "the call that Divine had made to L. Ray a night or so before," and
Phillips, referring to some earlier discussion among some drivers of how "they
would love to hide a recorder in the office and record all the different messages" for
Holland, said that such a recorder would "come in handy on" conversations such as
that of Divine and McDaniel on the telephone. McDaniel then told Divine that
Divine did not know but that McDaniel had recorded Divine' s message . Divine
replied that McDaniel's "recording wouldn't be any good unless it tallied with"
Divine's. During that day at Hico, Phillips did not see Divine "pull a gun on
anyone."
Despite inconsistencies as to details with which I do not deem it necessary to
burden this report, it is my carefully considered judgment that the weight of the
credible evidence shows that this phase of the Hico incident took place essentially
as the foregoing testimony of McDaniel and Phillips indicates; that the reason for
Divine delaying his return to the Leland terminal was to complete a discussion of
his affidavit, which he had initiated with McDaniel about the time the filling of
Divine's truck was completed; that Divine brought up the subject of his affidavit
essentially to needle McDaniel and Phillips; that whether or not he actually in-
tended to do so, Divine volunteered to get a copy of the affidavit to prove that he
had made one; that the question of tape recorders came up merely as banter among
the three drivers; that neither McDaniel nor Phillips made any statement that they
actually had recorded any conversation or any threat that they would record future
conversations; and that while this phase of the Hico incident may not have been
as free from acrimony or friction as the testimony of some of the General Counsel's
witnesses would appear to indicate, nevertheless no assault, threatened assault,
threats of any kind, intimidation, coercion, blackmail, or extortion was directed at
Divine by either McDaniel or Phillips, let alone Burns , during the Hico incident.
I further conclude and find that the evidence as a whole establishes that neither
McDaniel nor Phillips engaged in any unprotected activity at the refinery of the
California Company near Hico, Louisiana, on September 2, 1960, during their dis-
cussions with Divine which were related to union matters.
4. Conclusions as to the discharges
Having hereinabove concluded , in sections VI and V, which is herewith in-
corporated by reference , upon appraisal of all of the evidence in the record as to
all of the incidents which can reasonably be said to have bearing on the subject, that
neither McDaniel , nor Burns , nor Phillips actually engaged in any unprotected con-
certed activity, I further conclude and find , on the record as a whole, and on the
authority of the cases cited in the footnote ,57 that it is immaterial whether or not the
Respondent may have acted on a good-faith belief that any or all of them had done
so; that the Respondent accordingly discharged L. Ray McDaniel , Hulet C . Burns,
and Joe T. Phillips, on September 22, 1960 , because each of them had engaged in
protected concerted activities ; and that by so doing the Respondent violated Sec-
tion 8 (a)(3) and (1) of the Act.
67 See Adrian Steel Co, 130 NLRB 847, and Hill & Hill Truck; Line, Inc., 120 NLRB
101, 102. In the light of the foregoing decisions and the conclusions above reached, I do
not deem it necessary to discuss any of the ably stated and vigorously pressed contentions
in the General Counsel's brief as to why the record shows that Holland did not have the
required good-faith belief as to misconduct on the part of the dischargees , or the cases
which the General Counsel cites in connection therewith.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The 8 (a) (1) issues
1. The alleged interrogation
The complaint alleges and the answer denies that Vice President Curry Holland
interrogated employees concerning their union membership and activity about
July 27, 1960. It will be remembered that the motion to conform the pleadings to
the proof was granted only as to minor variations in formal matters . The first three
paragraphs of section III, B, above, present the particularly relevant background
circumstances pertaining to the alleged interrogation , and should be consulted at
this point. We will start with the conflicting testimony as to what transpired be-
tween Holland and one of the Union's leaders, L. Ray McDaniel.
McDaniel, who was, as the Respondent's brief correctly contends, the only wit-
ness produced 'by the General Counsel in regard to the allegation of interrogation
(which does not specify any particular employees who were interrogated), testified
that about a month before the election, he had a conversation with Holland at the
parking lot of the Leland terminal; that he did not know the exact date of their
conversation, which might have been a few days after July 27; and that during said
conversation, at which only the two were present, the following took place;
He [Holland] asked me [McDaniel] what I knew about the union and I told
him I knew a little about it, and he said I would be making a big mistake if I
had anything to do with it sand he had heard I was playing abig part in it.
This is the substance of Holland's version of his conversation with McDaniel. It
was probably 2 or 3 days after July 27, the date upon which Holland had gone to
Marks, Mississippi, where the agreement for the consent election had been signed,
that he and McDaniel conversed at the gas-loading rack. Knowing that the date
for the election already had been set, Holland told McDaniel that he "would like to
urge him to vote for the company." Holland "talked to a lot of men" about that
time along similar lines concerning the election, telling employees that "each man
was free to vote as he pleased, that it would be a secret ballot and nobody would
know how" any man voted. Holland denied that he had asked McDaniel if he knew
anything about the Union; that he told McDaniel that he had heard that McDaniel
played a big part in the Union's campaign; or that he had tried to find out how
McDaniel stood on union matters, as he had already been told by his attorney
that he could not interrogate employees.
I am satisfied that the conversation between Holland and McDaniel occurred a
few days after July 27. It thus took place approximately a month after Holland
had learned that the Union's petition of June 28 had been filed, and had first in-
quired of such drivers as Cotton and Divine if they had "heard anything about"
the Union. Moreover, since the evidence does not show that the Respondent made
any effort to ascertain the desires, sympathies, or extent of union activity during
those earlier inquiries, I do not see how such initial questioning can be held to show
more than a desire on the part of the Respondent, which later agreed to a consent
election, to find out if the Union really was active in organizing its employees.
Further, I am convinced that Holland's conversation with McDaniel was only one
of many which he had at the beginning of the Respondent's campaign against the
Union, during which employees were urged to vote for the Company, and were
furnished material about the history, methods, and reputation of Teamsters. In
addition, even though the record as a whole suggests the possibility that the relation-
ship which eventually developed between Divine and Holland, during the period
just before the election, when Holland was serving as the dispatcher, may have come
close to approximating surveillance of union activities, the evidence does not estab-
lish that even at that time Holland was taking the initiative in the conversations
during which reports were being made to him by Divine and others. Hence, every-
thing considered, I believe that the conversation between Holland and McDaniel
cannot be treated as one of a series of incidents over a 2-month period, but must
stand on its own as to time and content.
Let us now consider the Holland-McDaniel conversation in that context. It is my
considered opinion that the totality of the evidence warrants finding that this is
essentially what happened. During his talk against the Union with McDaniel,
Holland asked McDaniel essentially what he knew about the Union, in the sense
of what McDaniel knew about its history, reputation, and methods; Holland ex-
pressed his opinion that McDaniel would be making 'a big mistake in having anything
to do with Teamsters; and Holland, having heard that McDaniel was one of the
leaders in the Union's activities, indicated a feeling that because of his leadership
responsibility, it was important for McDaniel to be sure what he was doing. All
factors considered, while the matter is not entirely free from doubt, I do not believe
that the evidence as a whole can be said to take the conversation in issue outside of
DIXIE GAS, INC. 1087
the protection of Section 8(c) of the Act, and place it rather within the meaning of
interrogation, as I understand the long line of Board decisions beginning with Blue
Flash.58 Accordingly it will be recommended hereinafter that the the allegation as
to interrogation be dismissed.
2. The changes in privileges and working conditions
The complaint alleged and the answer denied that about August 27, 1960, Vice
President Holland punished and penalized the Respondent's employees by withdraw-
ing working conditions and privileges which they had formerly enjoyed and by im-
posing upon them more stringent working conditions, because of their activities on
behalf of the Union. The facts as to what Holland told the drivers about changed
rules and about the Respondent's being against the Union at a special meeting on
August 27, the day after the Union won the election, and also as to what Holland
told Phillips earlier that same day, have been set out in the third, fourth, and fifth
paragraphs of section III, C. These findings should be consulted at this point, as
.should also findings in section III, B, as to the way the Respondent, in a letter to
"Dear fellow employees" just a week before the election, extolled the Respondent's
lack of regimentation, watchdog, or timekeeper, and the freedom enjoyed by its
drivers on such matters as all runs and coffee breaks.
The Respondent's brief concedes that there is no question but that it "tightened up"
its instructions or rules in certain particulars, but it contends essentially that it did not
do so "in a fit of vindictive spite" against the Union, but for sound business reasons,
and that it took the measures involved immediately following the election because
to have taken them "before the vote would have been either impolitic or would have
drawn the fire of criticism from the union and the Board."
The General Counsel's brief, pointing to the friendly and informal relationship
and the freedom from restrictions which had existed before the election, the stress
put by the Respondent on such factors in its letter just a week before the election,
the hostility toward the Union expressed in connection with Holland's promulgation
of the new rules on August 27, and the nature of the actual changes and restrictions
which the new rules imposed, contends essentially that what Holland did discredits
any assertion that the Respondent had been intending for some time to make those
changes, and instead "clearly reflected his animosity toward the Union," and showed
Holland's "intention to punish and penalize the employees for voting the Union in."
There can be no doubt that what Holland said about changed rules to Phillips
individually and to the assembled drivers on August 27 represents, in contrast with
previous informality and freedom, a substantial tightening of rules and curtailment
of privileges. For instance, while sound management reasons can be advanced
for having loaders leave in time for unl'oaders to be able to make their subsequent
rounds after the loaded trucks have been returned to the terminal, the evidence
establishes that loaders previously had been free to leave on their runs at their con-
venience, sometimes earlier and sometimes later than 5 a.m. Again, the actual prac-
tice of the drivers, who are paid by the trip and not on a time basis, had been to drive
in all three States involved around'50 miles per hour in flat areas and to "roll off the
hills" at about 55 miles an hour, and I am convinced, from all of the evidence, includ-
ing Holland's own testimony, that this practice, whatever its legality, was known to
and cohdoned by the Respondent, with the understanding that drivers were on their
own and would pay their own fines`. Further, rather than being confined to one 15-
minute coffee break every 75 miles, the drivers, who were making their own working
day correspondingly long without increasing their pay, had been free to take coffee
breaks as often as they chose, where they chose, and for as long as they chose. In
addition, the drivers, without regard to butane systems, licensed or not, had parked
wherever it was convenient within the terminal's fenced area. They had enjoyed the
privilege of purchasing parts for their private motor vehicles, on the Respondent's
credit, at its cost, and without prior authorization, and of remaining at the shop after
their runs to talk with one another or to work on their own cars.
Taking each of the tightening elements in isolation, a plausible case can be made
for it, as the Respondent does in its brief.59 Usually no question would arise because
drivers were required to comply with speed laws, or to secure prior authorization
for using company credit, or were prevented from parking butane systems, particu-
larly illegal ones, on company premises, especially where a State inspection was
expected. Even the restriction that cars be parked away from the garage by the
ss Blue Flash Express, Inc, 109 NLRB 591 ,
Normally the "boss" Is not suspect if he insists on not being called by his first
name, and since friendship cannot be compelled, I am treating this element as an Indica-
tion of attitude, not as a curtailed privilege.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fence does not seem too burdensome or unreasonable, particularly since there appar-
ently had been occasions when vehicles had been left parked, and even locked, at
places which impeded operation, such as too near to air hoses and garage entrances.
But granting that coffee breaks on the part of some drivers may have grown too fre-
quent or too long, possibly influenced by the Union's campaign, the rigid coffee break
restriction of 15 minutes once in 75 miles impresses me as arbitrary and unreason-
able, especially since no permissible variations were indicated for such factors as.
unpredictable weather, driver fatigue, road conditions, equipment, performance, or
the location of suitable truck stops so
In any event, even assuming that most, if not all, of the Respondent's changed
rules and curtailed privileges come within the ambit of normal management preroga-
tives under some circumstances, there is no convincing showing that there had been
an accuculation of developments during the Union's relatively short campaign which
would warrant the simultaneous imposition of all of them, and the clear fact remains
that about a week before it announced the changes, the Respondent had advanced
the very lack of some of these restrictions, and the very freedom to do essentially
as one pleased which was thereby curtailed, as among the advantages which the
employees enjoyed without the Union Moreover, twice on August 27, first with
Phillips, and then with the drivers as a group, Holland made his unmistakably stated
opposition to the Union so integral a part of his announcement of the changed rules
and restricted privileges that I am convinced and find that both the intended and the
actual result thereof was, in at least substantial part, to punish and penalize the
drivers for, having chosen the Union as their bargaining agent, in the face of the
Respondent's expressed desire that they not do so. Accordingly 11 further find that
the Respondent thereby violated Section 8(a),(1) of the Act.si
VH. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in sections III and VI, above, occurring
in connection 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 ob-
structing commerce and the free flow of commerce. '
VIII. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom, and take certain affirmative
action, designed to effectuate the policies of the Act.
Having found that the Respondent discriminated against L. Ray McDaniel, Hulet
C. Burns, and Joe T. Phillips with respect to their hire and tenure of employment,
I will recommend that it offer them immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their seniority or other
rights and privileges. I will also recommend that the Respondent make McDaniel,
Burns, and Phillips whole for any loss of earnings each may have suffered because
of the discrimination against him, by payment to him of a sum of money equal
to the amount which he normally would have earned as wages, from the date of
his discharge to the date of the offer of reinstatement, less his net earnings during
said period, such backpay to be computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. It
will also be recommended that the Respondent make available to the Board, upon
request, payroll and other records to facilitate the determination of the amount due
under the foregoing recommended remedy.
6O Obviously some of the truck stops used, such as Bell's, would be off limits, under
the 75-mile rule, to loaders on their outgoing runs.
01 See the Board's recent decision in Lester Brothers. Incorporated, 131 NLRB 1144.
Also see Cummer-Graham Company, 90 NLRB 722 at 723, 728, and 735, and Armstrong
Cork Company, 103 NLRB 133, 134, cited in the General Counsel's brief. It should be
noted that the General Counsel's brief states the opinion that the remedy herein should
restore "all the lawful working conditions and privileges enjoyed" prior to the election
"which the record reflects were altered or withdrawn," but does not specify them. Said
brief also states the opinion that "it would not be proper to order the Respondent to
restore the unlawful matters, any more than it was proper for the Respondent to authorize
and condone them In the first place " Having given much thought to this problem, and
finding no affirmative relief ordered in any of the above-cited cases, I have reached the
conclusion that the type of cease-and-desist order, along with the type of notice, used
by the Board in the first and second of the above cases, will suffice in the Instant matter,
if cognizance Is taken of applicable State laws.
DIXIE GAS, INC. 1089°
As the unfair labor practices herein found are the type which strike at the very
roots of employee rights safeguarded under the Act, it also will be recommended:
that the Respondent cease and desist from interfering in any manner with the exer-
cise by its employees of rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record,
in Case No. 26-CA-962, I make the following:
CONCLUSIONS OF LAW
1. Dixie Gas, Inc., is engaged in commerce within the meaning of Section 2(6),
and (7) of the Act.
2. General Drivers, Salesmen & Warehousemen's Local Union No. 984, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, is a labor organization within the meaning of Section 2(5) of the Act.
3. By discharging L. Ray McDaniel, Hulet C. Burns, and Joe T. Phillips, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (3) of the Act.
4. By the foregoing conduct, and by withdrawing privileges and imposing more
stringent working conditions, the Respondent has interfered with, restrained, and:
coerced its employees in the exercise of rights guaranteed in Section 7 of the Act,_
and thereby has engaged in and is engaging in unfair labor practices within the-
meaning of Section 8(a)( I) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-.
merce within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent has not engaged in unfair labor practices, within the meaning:
of Section 8(a) (1) of the Act, by interrogating its employees concerning their-
union membership or activities.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and,
upon the entire record in Case No. 26-CA-962, I recommend that Dixie Gas, Inc.,
Leland, Mississippi, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the above-named Union, or any other labor-
organization of its employees, by discriminating in regard to the hire or tenure of
employment, or any other term or condition of employment, of any of its employees.
(b) Withdrawing or curtailing any legal privileges or imposing or enforcing:
more stringent working conditions (except in order to comply with State laws) for-
the purpose of, or at such a time and in such a manner as to interfere with, restrain,-
or coerce employees in the exercise of rights guaranteed in the Act.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their rights to self-organization, to form, join, or assist the above-
named Union, or any other labor organization, to bargain collectively through
representatives of their own choosing, or to engage in concerted activities for the-
purpose of collective bargaining or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as a condition of"
employment, as authorized by Section 8(a)(3) of the Act, as modified by the
Labor-Management Reporting sand Disclosure Act of 1959.
2. Take the following affirmative action which I find will effectuate the policies.
of the Act:
(a) Offer to L. Ray McDaniel, Hulet C. Burns, and Joe T. Phillips immediate-
and full reinstatement to their former or substantially equivalent positions, without.
prejudice to their seniority or other rights and privileges.
(b) Make whole L. Ray McDaniel, Hulet C. Burns, and Joe T. Phillips for
any loss of earnings each may have suffered as a result of the discrimination against-
him, as provided in the above section entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its agents, for-
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze
the amount of backpay due under the terms of these recommendations.
(d) Post at its terminal in Leland, Mississippi, copies of the notice attached'
hereto marked "Appendix." Copies of said notice, to be furnished by the Regional'
Director for the Twenty-sixth Region, shall, upon being duly signed by the Respond-
ent's authorized representative, be posted by the Respondent immediately upon re-
ceipt thereof, and be maintained by it for a period of 60 consecutive days thereafter,.
634449-62-vol. 135-70
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in conspicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Twenty-sixth Region, in writing, within
.20 days of the date of the receipt of this Intermediate Report and Recommended
Order, what steps the Respondent has taken to comply herewith.
It is further recommended that unless the Respondent shall, within 20 days from
the date of the receipt of this Intermediate Report and Recommended Order, notify
the Regional Director, in writing, that it will comply with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring the
Respondent to take the action aforesaid.
It is also recommended that the allegation of the complaint that the Respondent
interrogated its employees concerning their union membership and activities be
dismissed.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT withdraw or curtail any legal privileges or impose or enforce
more stringent working conditions (except in order to comply with State laws),
for the purpose of, or at such a time and in such a manner as to interfere with,
restrain, or coerce our employees in the exercise of their rights guaranteed in
the National Labor Relations Act.
WE WILL offer L. Ray McDaniel, Hulet C. Burns, and Joe T. Phillips im-
mediate and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority and other rights and privileges.
WE WILL make L. Ray McDaniel, Hulet C. Burns, and Joe T. Phillips whole
for any loss of pay each may have suffered as a result of the discrimination
against him.
WE WILL NOT discourage membership in General Drivers, Salesmen & Ware-
housemen's Local Union No. 984, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, or any other labor organiza-
tion, by discharging, or in any other manner discriminating against any em-
ployee in regard to his hire or tenure of employment or any other term or con-
dition of employment, or in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organization, to
form, join, or assist the aforesaid Union, or any other labor organization, to
bargain collectively through representatives of their own choosing, or to
engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all such activities, except
to the extent that such right may be affected by an agreement, conforming to
the Act, requiring membership in a labor organization.
All of our employees are free to become or remain, or to refrain from becoming
,or remaining, members of the above-named Union, or of any other labor orgaf iza-
-tion, except as such right may be modified in conformity with the Act.
DIXIE GAS, 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.
Blueprint Photostat & Photo Employees Union , Local 249, Inter-
national Jewelry Workers Union , AFL-CIO and East Photo
Lab. Case No. 22-CC-131. February 15, 1962
DECISION AND ORDER
On November 24, 1961, Trial Examiner George A. Downing issued
his Intermediate Report in the above-entitled case, finding that'the
135 NLRB No. 106.