L. & H. Trucking, Inc.

National Labor Relations Board - Board Decisions

Oct 11, 1965

155 N.L.R.B. 104 (N.L.R.B. 1965)

104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
L. & H. Trucking , Inc. and C. R. Patterson and L. & H. Trucking,
Inc. and James L. Johnson . Cases Nos. 38-CA-23 (formerly 13-
CA-6685) and 38-CA-31 (formerly 13-CA-6794). October 11,
1965
DECISION AND ORDER
On May 17, 1965, Trial Examiner Owsley Vose issued his Decision
in the above-entitled proceeding, finding that the Respondent had
engaged in certain unfair labor practices within the meaning of the
National Labor Relations Net, as amended. However, in view of the
subsequent conduct of the Respondent, the Trial Examiner found that
it would not effectuate the policies of the Act to issue a cease-and-desist
order, and, accordingly, recommended that the complaint be dismissed
in its entirety. Thereafter, the General Counsel filed exceptions to the
Trial Examiner's Decision and a, supporting brief.
Pursuant to Section 3(b) of the Act, the National Labor Relations
Board has delegated its powers in connection with this case to a three-
member panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this proceeding, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner except as modified hereafter.'
Although the Trial Examiner found that Respondent, by interro-
gating employees about their union activities and threatening reprisals,
violated Section 8 (a) (1) of the Act, he found it unnecessary to recom-
mend a remedial order in view of Respondent's subsequent conduct of
recognizing the Union and entering into a contract with it.
We do not agree. The record shows that on several occasions Hol-
comb, Respondent's president, interrogated individual employees re-
garding their support or adherence to the Union. It is clear that such
interrogations were not solely for the purpose of ascertaining majority
status in order to assist the Respondent in its dealings with the Union,2
but, on the contrary, were of such a nature that the individuals involved
could only conclude that Respondent vigorously opposed their efforts
to organize a union. Statements by Holcomb during these interroga-
' Under all the circumstances herein , including Patterson ' s leading role in the union
movement and Respondent 's knowledge thereof , the inconsistent reasons given for the
discharge and its timing , and Respondent ' s union animus , all as found by the Trial Exam-
iner, Member Brown believes that the discharge of Patterson on September 22 was
induced, not by anything which Patterson may have told Holcomb during their Septem-
ber 9 meeting but rather by Patterson 's union activity which Respondent learned about
thereafter. He would, accordingly, find an 8(a) (3) violation in Patterson's discharge
with an appropriate order therefor . Like his colleagues , he would also enter an order
designed to remedy the independent 8(a)(1) violations.
2 See Blue Flash Express, Inc., 109 NLRB 591.
155 NLRB No. 4.
L. & H. TRUCKING, INC. 105
tions that employees were "going behind my back," and "You guys
all have a lot to learn on this Union deal," far exceed the permissible
limits of interrogation and when considered in conjunction with Hol-
comb's direct threat to employee Lucy that he would "sell his rigs and
lease the tractors before he would go union," leads us to the conclusion
that a remedial order is warranted. Holcomb's subsequent actions of
recognizing and entering into an agreement with the Union do not in
our view adequately eliminate the adverse effects his conduct might
have had on employees' organizational activities protected under Sec-
tion 7 of the Act. Accordingly, to effectuate the policies of the Act,
we shall enter an order directing that Respondent cease and desist from
engaging in such, and like or related, activity.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, L. & H. Trucking, Inc., Springfield, Illinois, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Interrogating employees regarding their union membership or
activities in a manner constituting interference, restraint, or coercion
within the meaning of Section 8 (a) (1), or uttering threats that the rigs
would be sold and the tractors leased before it would go union.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist Local 619, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in lawful
picketing or other 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 requiring membership in a labor organization
as a condition of employment, as authorized in Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act :
(a) Post at its truck and garage facilities in Springfield, Illinois,
copies of the attached notice marked "Appendix." 3 Copies of said
notice, to be furnished by the Regional Director for Region 38, shall,
after being duly signed by the Company's representative, be posted by
8In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order " the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company immediately upon receipt thereof , and be maintained by
it for 60 consecutive days thereafter , in conspicuous places, including
all places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Company to insure that said notices
are not altered , defaced, or covered by any other material.
(b) Notify the Regional Director for Region 38, in writing , within
10 days from the date of this Order, what steps have been taken to
comply herewith.
APPENDIX
NOTICE TO ALL OUR EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT coercively or unlawfully interrogate our employ-
ees regarding their union membership or activities or threaten
that the rigs would be sold and the tractors leased before we would
go union.
WE WILL NOT in any like or related manner interfere with,
restrain , or coerce our employees in the exercise of their right to
self-organization , to form labor organizations , to join or assist
Local 619, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other labor orga-
nization, to bargain collectively through representatives of their
own choosing and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection
as guaranteed in Section 7 of the Act, and to refrain from any and
all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor orga-
nization as a conditions of employment , as authorized in Section
8(a) (3) of the Act, as modified by the Labor- Management Re-
porting and Disclosure Act of 1959.
L. & H. TRUCKING, INC.,
Employer.
Dated----- ----------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered , defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 225 Main Street, Peoria, Illinois, Telephone No. 673-9061,
Extension 284, if they have any questions concerning this notice or
compliance with its provisions.
L. & H. TRUCKING, INC. 107
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
These cases, heard in Springfield, Illinois, on January 11 and 12, 1965, before
Trial Examiner Owsley Vose, pursuant to charges filed the preceding September 23
and November 17, 1964, and a consolidated complaint issued on December 31, 1964,
present questions as to whether L. & H. Trucking, Inc., herein called the Respondent,
discharged the above-named Charging Parties in violation of Section 8(a) (3) of the
Act and whether the Respondent engaged in acts of interference, restraint, and coer-
cion in violation of Section 8 (a) (1) of the Act.
Upon the entire record, including my observation of the witnesses, and after due
consideration of the briefs filed by the General Counsel and the Respondent, I make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Illinois corporation, is engaged at Springfield, Illinois, in the
transportation by tractor-trailers of various materials and commodities. During the
fiscal year ending September 30, 1964, the Respondent derived gross income in excess
of $50,000 for transporting materials for American Oil Co., American Petrofina Co.,
Shell Oil Co., Apex Oil Co., and Sangamon Chemical Division of W. R. Grace Co.,
each of which ships more than $50,000 of goods and materials across State lines
annually. Upon the facts, I find, as the Respondent admits, that it is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act, and that it will effectu-
ate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local 619, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background events
The incidents alleged to constitute unfair labor practices in this case occurred in
September and October 1964 However, these incidents cannot be properly appraised
without considering certain events involving the Respondent which occurred during
the period from July to December 1964. It is to these background events which I
turn after first discussing briefly the nature of the Respondent's business and its super-
visory hierarchy.
The Respondent owns about 9 tractors and approximately 25 trailers of various
types, such as tankers for hauling anhydrous ammonia and other forms of liquid
fertilizers, fuel oil, road oil, and open trailers for hauling corn, coal, and miscellane-
ous items. The products hauled vary depending on the season of the year. At the
time of the events here involved the Respondent employed on an intermittent basis
about eight employees to drive its tractors. The drivers reported for work only on
call On most occasions the drivers would receive a telephone call only about an
hour ahead of the scheduled departure time of the run. The men were called for
runs on a rotation basis.
Harry W. Holcomb is the president of the Respondent and is in active charge of
the business. Paul Lawler is vice president of the Respondent, and during the
6-month period beginning with Labor Day 1963, when President Holcomb suffered
a serious heart attack, Lawler was in complete charge of the business. Keith Hud-
son's title with the Respondent is that of manager. Hudson, among other things,
acts as dispatcher of Respondent's drivers.
President Holcomb has been a member of the Teamsters for about 30 years. In
July 1964, Holcomb and Hudson by chance encountered John Smith, vice president
of the Union, in a restaurant. According to the testimony of both Holcomb and
Smith, which I credit, Holcomb at this time indicated to Smith that he was interested
in a union contract and would like to talk about the matter some time later on.
On August 11, 1964, Smith went out to the Respondent's terminal and talked to Hol-
comb about negotiating a contract. At this time Holcomb inquired as to whether
any of the employees had come to the union office and signed up . Smith said no.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Holcomb suggested deferring any negotiations until Long, the president of the Union
and a long-time friend of Holcomb's recovered from an illness and was himself able
to take part. Smith apparently acquiesced in this suggestion and there were no fur-
ther communications between the Respondent and the Union until late September.
About the middle of August 1964, President Holcomb was discussing with Tom
Murphy, vice president of Royal's Fuel Service, a proposed contract for hauling coal
to be supplied by Royal to the power plant of the city of Springfield. In the course
of these negotiations, Holcomb, accompanied by Murphy, went out to the powerplant
and talked to Wilcoxsen, superintendent of the powerplant. In the course of the
conversation, Wilcoxsen mentioned that "the means that supplied coal and the truck-
ing company would have to have union help supply the coal." 1
As is more fully explained hereinafter, the first contact between any of the
Respondent's employees and the Union occurred on September 5, 1964 On Sep-
tember 22, 1964, the Union filed with the Board's Chicago Regional Office a peti-
tion for certification as bargaining representative of the Respondent's truckdrivers.
Upon receiving a copy of the petition, which was signed by Jerry Banning, the
secretary-treasurer of the Union, Holcomb called Banning and was told that the
Union had 30 percent of the Respondent's employees signed up and was asking that
the Board conduct an election among the Respondent's truckdrivers. After con-
sulting his lawyer, Holcomb called Banning back and told him that "There is no
sense of an election." Banning proposed that Holcomb sign when Holcomb referred
to as a waiver of the election. Holcomb agreed. Banning had prepared and sent
to Holcomb about October 1 an agreement in which the Respondent agreed "to
recognize" the Union "as the exclusive bargaining agency" for all of the Respond-
ent's truckdrivers. After the Respondent's attorney approved the agreement, Hol-
comb signed it on behalf of the Respondent on October 5 and returned it to Ban-
ning. After negotiations with the Union in November, the Respondent signed a
3-year collective-bargaining contract with the Union, effective December 1, 1964.
Sometime in November, after several months of negotiations, the Respondent
entered into a contract with Royal's Fuel Service for the hauling of coal to the
Springfield powerplant. This contract covered a period commencing December 1,
1964.
B. The employees' organizational activities; President Holcomb's questioning
of employees and his veiled threats to employee Lucy
Clarence Patterson, one of the Respondent's drivers, went to the office of the
Union in Springfield on September 5, 1964, and asked Vice President Smith whether
"there was any chance of getting L & H Trucking into the union." When Smith
indicated interest in the project, Patterson decided to contact some of his fellow
drivers about the matter. After inquiring of Henry Lucy, James Johnson, Wil-
liam Bale, and Frank Greene as to whether they were interested in having the
Union represent them, Patterson went back to the union office to talk the matter
over with Smith. As a result of this conversation, Patterson scheduled a meeting
of the employees for 2 p.m. on Saturday, September 19, at the Teamsters' hall in
Springfield. Patterson called the employees on the telephone or called personally
at their homes to notify them of the meeting.
In the meantime, on September 9, President Holcomb had had Patterson come
into the office for a talk after Patterson had come in from a run. Preliminarily it
should be stated that earlier Patterson had complained to Hudson that he did not
want to leave on a run later than 7 a.m. because the heat of the day hurt his leg.
Patterson had been seriously injured while driving one of the Respondent's rigs the
previous February. For the same reason Patterson also protested to Hudson about
being sent out on a second run a day. According to Holcomb's testimony which I
credit, the following conversation ensued on this occasion:
I asked him about the complaint about going out before 7:00 o'clock in
the morning, and what about the two loads.
I asked him if he was satisfied with our company and he said he definitely
was not satisfied with the company.
I said, "Well, why don't you quit?"
He said, "I cannot quit because I am crippled and I cannot get a job no place
else."
'This is Holcomb 's credited and undenied testimony . Neither Murphy nor Wilcoxsen
were called as witnesses by the General Counsel.
L. & H. TRUCKING, INC. 109
He said , "I cannot pass a physical examination . My legs are in too bad a
shape."
I said, "If your leg is that bad, if your leg is in that bad a shape, you'd better
go back to the doctor and see what they can do for you." ... And I told him
to let me know what was discovered, what the doctor did.
Patterson 's version of this conversation is substantially in accord with Holcomb's.2
About the middle of September, Holcomb called Harold Beddingfield, Jr, on the
telephone one night after Bedding field had gone to bed . According to Bedding-
field's credited testimony the following conversation then took place:
Harry Holcomb called me and I was in bed. When I answered him I told him I
was. He said, "Can you come out to the shop?" I said, "Harry, I'm in bed, do I
have to tonight?"
He said, "No, I will ask you on the phone what I want to know."
So he asked me, he said, "I heard you would not sign up."
So I asked him, I said, "Harry, what the hell are you talking about?" I did not
know what he meant.
He said, "Well, some of the guys told me you would not join the union." I
said, "Nobody ever asked me to join the union "
He said, "I just wanted to hear what you had to say about it."
He hung up.3
Another driver approached by Holcomb about this time was Henry Lucy. As
be was leaving for a run, Holcomb asked Lucy if he had heard anything about the
Union. Lucy told him that he had "heard a little talk." Holcomb commented that
Patterson and Janssen were the ringleaders who had started the union movement .4
At this point Holcomb added that he carried a union card.
During this same period Holcomb asked Marvin Bale what he knew about the
Union. Bale replied that he did not know anything about the Union.
Later, on September 18, Holcomb had a lengthy conversation with Lucy about
the Union. The conversation took place at Paris, Illinois, where Lucy had had an
accident. Holcomb had come over to pick Lucy up and the two men were waiting
in Holcomb's car for the Respondent's low-boy trailer to arrive to pick up the tractor
Lucy's and Holcomb's versions of the conversation are somewhat similar in con-
tent but differ greatly in the matter of emphasis.
In Lucy's version, Holcomb stated as follows:
Well we were just talking and he said that the union would do us no good. He
would sell his rig and lease the tractors before he would go union.
Holcomb testified as follows about this conversation:
Mr. Lucy asked me, he said, "Harry, you have carried a union card for many
a year." I said, "Yes, I have a union card-I have had a union card for almost
30 years, paid up card."
2 While Holcomb testified at another point in his testimony that he had asked Patterson
whether he had signed a union card during this conversation on September 9, Patterson
denied that Holcomb had mentioned the Union to him at any time . I believe that Holcomb
was mistaken in this regard.
3 When questioned about what he had said to Beddingfield on this occasion , Holcomb
testified that he had asked each of the employees whether he had yet been down and
signed up with the Union. At this point in his testimony Holcomb placed this question-
ing of the individual employees as having occurred "sometime in September " At another
point in his testimony Holcomb was certain that he had not asked his employees about
whether they had signed up for the Union before he received a copy of the Union's peti-
tion. Still later Holcomb testified that he thought that he had talked to the employees
(with the exception of Patterson ) about signing up in the Union after he had received
the notification from the Union. As set forth below, in addition to Beddingfield, em-
ployees Henry Lucy and Marvin Bale credibly testified that Holcomb questioned them
about the Union before the union meeting on September 19. I find , contrary to Hol-
comb's testimony, that Holcomb commenced questioning employees about signing union
cards about the middle of September , after Patterson had scheduled the union meeting
for Saturday , September 19, and not after he received a copy of the Union's petition, as
Holcomb testified.
4I do not credit Holcomb's denial that he had told Lucy that Patterson and Janssen
were the ringleaders in the union movement . Upon the record as a whole, I am con-
vinced that commencing about September 15 Holcomb questioned various employees about
their union sympathies and stated that he was aware of the identity of the union leaders.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He said, "I have never been in the union . Explain a little about it to me if
you can.
I told him to the best of my knowledge that there was things in the union
contract and union that was good for the employer. That there was things that
was good for the employee, and that there was things that was bad for the
employer and bad for the employee.
I said, "For instance , now, you have had a wage assignment and we have
always helped you out with this wage assignment. We have lent you money.
You have always been paid for your stops, your meals and everything. We have
paid you."
I said, "But that is the bad part of it for you "
He said, "Well, explain to me something else about this tank wagon contract."
Holcomb interrupted his testimony about the conversation at this point to explain
that a tank wagon contract is a contract for "strictly petroleum haulers" under which
the employees receive guaranteed wages. Holcomb resumed his account of his
conversation with Lucy, as follows:
So he said, "Well, what does this guaranteed contract consist of?"
I said , "In the first place, Henry, before we would ever discuss any contract,
before I would ever go in and sign a tank wagon contract, I'd have to sell out and
lease my equipment like I used to lease it before because I couldn't pay it under
no circumstances. We do not haul petroleum like those people. We have sea-
sonal work, which if it rains, we don't work."
And he said, "I understand that." He said, "Well, does all the men get the
guarantee in this contract or percentage?" I said, "Henry, I cannot tell you
that, I don't know.
He said, "I have never been in the union; I don't know anything about it "
He said, "As far as I am concerned, I am happy; I am making money."
Even under Holcomb's version of the conversation it appears that he was suggest-
ing that unionization might result in the loss of certain advantages and benefits
which the Respondent's employees received without a union With respect to the
discussion of the tank wagon contracts which, according to Holcomb, furnished the
occasion for mentioning his having to sell his equipment, there was no reason for
Holcomb to bring up the subject of the tank wagon contracts since they were not
applicable to the Respondent's type of business. I find that Holcomb went out of
his way to bring up this subject in order to provide an excuse for mentioning the
possibility of his having to sell his equipment in an effort to induce Lucy to reject
the Union. For the foregoing reasons I cannot accept the gloss which Holcomb
seeks to place upon his conversation with Lucy. I find that Holcomb in his con-
versation with Lucy uttered veiled threats to withdraw existing benefits and to sell
his equipment if the employees affiliated with the Union
On September 19, 1964, the union meeting which Patterson had arranged was
held at the Teamsters hall in Springfield. Employees James Johnson, Frank Greene,
and Lucy attended, as did Union Vice President Smith. Patterson did not attend
because he did not get back from a run in time. The record shows that Johnson and
Lucy signed bargaining authorization cards at this meeting and that Patterson also
did so later that day.
Patterson arranged to have William Janssen meet him at James Johnson's house
on the evening of January 21. There, in the presence of Johnson, Patterson
explained to Janssen about authorizing the Union to negotiate a contract with the
Respondent on behalf of the drivers. Janssen signed an authorization card that
evening.
On September 21, James Johnson went to the house of Harold Beddingfield,
another of the Respondent's drivers. Johnson asked Beddingfield if he had heard
anything about the Union. Beddingfield said that he had heard nothing directly.
After Johnson explained the drivers' efforts to obtain signatures on cards authorizing
the Union to negotiate a contract in their behalf, Beddingfield agreed to follow John-
son in his car over to the union office. There Beddingfield signed a union authoriza-
tion card. Previously Vice President Lawler had told Beddingfield, as he credibly
testified, that he "would just as well, go ahead [sign a card], we were going to have
to join the union."
Shortly thereafter President Holcomb engaged Johnson in a conversation just as
he was getting ready to leave on a run. Regarding this conversation Johnson testi-
fied as follows:
I started to go out and get in my tractor and he called me back and said,
"Jim,"-Mr. Holcomb said, "Jim, I want to talk to you." I said, "All right."
L. & H. TRUCKING, INC. 111
He said , "What is the deal on you guys going behind my back" I said,
"Harry, if you will explain yourself, I will try to answer your question."
He said , "Don't act so damn innocent You know what I'm talking about.
You have known about it for a month and a half."
I said , "You mean the union ?" He said , "Yes."
And I said , "Harry, I did not go behind your back." I said, "I did not go
behind your back." He said or he asked if I was going to negotiate a contract.
I said , "Yes, but I didn't go behind your back."
He wanted to know why I was dissatisfied and why I signed the card. I told
him I was dissatisfied with the conditions. He wanted to know what they were.
I said, "One, if you get mad at a driver, no matter how long he has been with
the company, he sets. And you run new drivers day and night."
Also, you have faulty equipment, and if there is a complaint about it, you tell
them, "If you don't like it, look for another job."
I said, "Those are my two main reasons ." So he said, "Go on and get your
damn load."
He also said, "You guys all have got a lot to learn on this union deal."
Holcomb's testimony concerning this incident is as follows:
I asked Mr. Johnson the same question that I asked the rest of the men: Had
he been down and signed a union card yet. And he said no. I said, "Why in the
hell do you fellows all lie to me and going behind my back," because at that
time the union had notified us that they had gotten the cards ....
They had 30 percent of the men signed.
I find that this conversation occurred in accordance with the testimony of Johnson
above quoted.
About September 25 Holcomb approached Bale in the shop and said to him in
effect, "I thought you did not know anything about the Union." Bale replied, "I
didn't know until that last Sunday ... when I was at Petersburg and talked to Jans-
sen." Bale then explained that Janssen had told him about the forthcoming meet-
ing, but that he (Bale) had not attended. Bale further reported to Holcomb that
"a certain party" had come to his house. Holcomb interjected that he knew it was
Patterson. Bale stated, in response to a question from Holcomb, as I infer, that he
had signed a card, but he added that he was not the only one. To this Holcomb
replied that he knew that both Bale and Janssen had signed a card.°
C. The discharge of Clarence Patterson on September 22,1964
Patterson was hired by Holcomb in March 1963 to haul anyhdrous ammonia from
the W. R. Grace Co. plant in Memphis, Tennessee. Up until July 7, 1963, Patterson
was on the W. R. Grace Co. payroll. Thereafter Patterson went on the Respond-
ent's payroll and was dispatched out of Springfield, Illinois. The Respondent con-
tinued to have W. R. Grace Co. as a customer and frequently hauled loads of liquid
fertilizer out of that Company's Meredosia, Illinois, plant.
In August 1963 the W. R. Grace Co. complained to the Respondent that it had
received a report from the Morgan Oil Company, one of its customers, that Patter-
son had proposed to it a scheme for buying anhydrous ammonia at a reduced price
Under Patterson's alleged proposal he would not unload all of the ammonia at the
previous customer's and would sell what was left in the tank (which the previous
customer would be charged for) to Morgan Oil Company at half price. This is a
simplified statement of how the alleged scheme would work. I am not at all certain
that I understand how it would have been possible for the scheme to have worked
with a proper weighing of the loads before and after loading. But in any event the
record does establish that, regardless of the justification for its action in this respect,s
W. R. Grace Co notified the Respondent in August 1963 that Patterson was not to
haul any more loads for it. The Respondent complied with W. R. Grace Co.'s deci-
sion in this regard and Patterson had not since this notification hauled any more
loads for W. R. Grace Co.
5 Holcomb was not questioned about this conversation with Bale. Hence, Bale's testi-
mony above quoted stands undenied except for Holcomb's general testimony about his
questioning of employees concerning signing union cards, which I have found not to be'
credible I find that this incident occurred as testified to by Bale.
s Patterson denied making any such proposal and gave a plausible explanation of the
conversation which apparently foinied the basis of Morgan Oil Co.'s accusations
against him.
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In October 1963, Vice President Lawler had had a conversation with Patterson in
which he called Patterson's attention to the W. R. Grace Co.'s accusation. Patter-
son vigorously denied having made any such proposal and suggested to Lawler that
they both visit Morgan Oil Co. and ascertain the truth of the accusation made against
him. Lawler refused.
Patterson continued to work on the same intermittent basis as all of the Respond-
ent's drivers until December 23, 1963. At this time his tractor broke down in the
middle of a busy intersection on the outskirts of Decatur. Illinois. It had been
giving him trouble every few miles. Unable to find a service station nearby which
was able to move the rig, Patterson left it in the intersection. After calling and
advising Vice President Lawler of the situation, Patterson secured a ride and returned
to his home.
After this incident Patterson was not called for any runs until January 15, 1964,
at which time President Holcomb called and asked him to come to the garage.
Holcomb asked Patterson if he was ready to go back to work. Patterson said yes
and worked until February 4, 1964, at which time Patterson went off the road and
ran into a house with his tractor-trailer. Patterson was seriously injured in this
accident and remained in the hospital for about 6 weeks.
During his period of disability Patterson received $57.50 per week under an insur-
ance policy which the Respondent had with the Travelers Insurance Co. covering its
drivers. Both the Respondent and the drivers contributed to the cost of the coverage.
During the period Patterson was eligible to receive weekly payments under the
insurance policy, the Respondent kept up not only its premium payments but also
the premium payments which Patterson was obliged to make. Patterson's share
amounted to $3.59 a week.
During his convalescence Patterson went to the terminal and told Holcomb that
he was getting behind and needed work, and asked if there was any extra work
available. Holcomb had Patterson take care of the telephone at the terminal at
nights. After about 3 or 4 weeks Patterson quit without notice to the Respondent.
Patterson explained at the hearing that he was dissatisfied with the low pay which
he was receiving.
On August 10, 1964, Patterson visited his doctor who gave him a note stating that
he was able to return to work. Patterson gave the note to Holcomb, who promptly
called him for a run. After Patterson went back to work, Holcomb started deducting
from Holcomb's pay installments on Patterson's insurance premiums which Hol-
comb had paid for Patterson during his period of disablement. Patterson com-
plained to Holcomb about this, saying that he had not authorized any such deduc-
tion. Patterson continued receiving runs until September 9, at which time Holcomb
took up with Patterson his complaints about being sent out later than 7 a.m. and
about being assigned two runs in a day. This was the occasion on which Patterson
admittedly stated that he was dissatisfied working for the Company and, in response
to Holcomb's query why did he not quit, stated that he would if he could but that
he was crippled and could not find a job elsewhere Patterson told Holcomb on this
occasion that his leg was hurting him and that he had a doctor's appointment for the
following week. Holcomb told Patterson to let him know what the doctor reported.
On September 15 Patterson called Holcomb on the telephone and stated that the
doctor had informed him that there was nothing wrong with his leg, that it just
needed exercise. Patterson was called for runs on the next 3 days. Holcomb was
away from the terminal during this period. Upon Holcomb's return, he called Pat-
terson's doctor and inquired concerning the seriousness of Patterson's leg condition.
Holcomb was advised that there was nothing seriously wrong with Patterson's leg
and that what was needed was more exercise
Holcomb discussed Patterson with Manager Hudson over the weekend and had a
further discussion with Vice President Lawler about Patterson on Monday evening,
September 21. In the latter conversation Holcomb brought up the fact that the
oil season was about over with and that W. R. Grace Co. would not allow Patterson
to haul for it. Lawler mentioned Patterson's complaints to Hudson about being
dispatched later than 7 a.m. and his reluctance to take more than one load a day.
Lawler also mentioned the "grumbling" in which Patterson was prone to engage.
Holcomb detailed to Lawler the conversation which he had had with Patterson on
September 9 in which Patterson had expressed considerable dissatisfaction with the
.way the Respondent managed its business, said he would quit if he could only get
another lob, and blamed the Respondent for his leg injury which he said prevented
him from being able to pass a physical examination. The upshot of this conversa-
tion was the decision to discharge Patterson the next morning
L. & H. TRUCKING, INC. 113
Patterson was called at 7.30 a.m. to be at the terminal at 8 30. Holcomb and
Lawler met Patterson at the door of the garage when he arrived. According to
Patterson's credited testimony, Holcomb said to him on this occasion as follows:
He said, "You are not satisfied around here with us, why, we are not satisfied
with you."
And he handed me my check and on the back of it was "Paid in Full."
And he said that the insurance that he paid for me was paid while I was off
hurt. He put it in the profit and loss. And I told him from what I dispatched
there that I did not think it was such a loss.
And he said that I could not haul Anhydrous Ammonia for W. R. Grace. And
that if I did haul for W. R. Grace, he would lose his contract.
So I walked off. 7
Holcomb testified at the hearing concerning the reason for Patterson's discharge,
as follows:
Well, he told me he was dissatisfied with me and with our company, and that
if he could go someplace else and-if he could take a physical, he would-he
had a job he could go to. So taking that into consideration, why should the
man want to work for us?
And I decided if that was his attitude, then, we didn't need him because he
was physically able to go out and work the doctor said.
The whole thing that triggered me off was that we had-may I go back and
answer it just a little bit further?
We tried to be decent people with Mr. Patterson, paying his insurance. This
is one of the things.
Then, when we started deducting his insurance, he said, "I didn't tell you to
take it off." And he was-this was all roundabout in the conversation.
And then we-when he told me if he could take a physical, he would work
for somebody else and he did not want to work for me, when I got to thinking it
over, I decided if he wanted to work for somebody else, I would give him the
chance to work for someone else, sir.
D. The discharge of James Johnson on October 30,1964
Johnson started working as a driver for the Respondent in April 1962. He was
first used as a driver for W. R. Grace Co., hauling anyhdrous ammonia out of that
Company's plant at Meredosia, Illinois, under a contract the Respondent had with
Grace to furnish leased equipment and drivers. Shortly before Johnson was hired
he had worked temporarily for the Respondent on two special hauling jobs. At this
time Johnson mentioned the fact that he could not do heavy lifting. Johnson had
suffered severe leg and back injuries while working for a previous employer. Again,
when Johnson sought permanent employment with the Respondent, he told Holcomb
that he could not do a lot of heavy lifting and climbing. Holcomb said that there
would be no problem on the tanker operation. There is little lifting and climbing
done in connection with loading or unloading a tank trailer
After hauling four or five loads of corn in the fall of 1962, Johnson experienced
serious difficulty in walking. Johnson consulted a doctor, who said that Johnson
should not have attempted to do the corn-hauling type of work. Johnson reported
the doctor's findings to Holcomb, and told Holcomb that he had better hire another
man in his place, for the doctor had said that he might be off work for an indefinite
period.
About a month later Johnson called the office and said that he was ready to go
back to work. He worked for about 2 weeks when he fell from the cab of the
truck and reinjured his back. Johnson was required to undergo additional medical
treatment and he again advised Holcomb to look for another driver as it appeared
that he might not be able to work as a driver again. Holcomb called Johnson and
inquired about his condition in April 1963. As a result of this call Johnson returned
and worked until September 1963. Thereafter Johnson did not work for the
Respondent again until April 1964.8 At this time Holcomb and Lawler visited
7 Holcomb's version of this conversation is substantially the same as Patterson's
8 According to Johnson, he did not receive any calls to come to work during this period.
Vice President Lawler testified that he repeatedly called Johnson but was unable to reach
him at any of the numbers Johnson had given him. It is unnecessary , for the purposes
of this case , for me to resolve the conflicting testimony about this matter.
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson at his home and asked him if he wanted to return to work .9 Johnson went
back and worked until October 30, 1964, when he was discharged.
On October 23, Holcomb called Johnson in the morning and asked him if he
thought he could haul one or two loads of corn that morning. Johnson replied,
"Harry, you know I can 't." ' Johnson testified that the conversation then continued
as follows:
He [Holcomb ] said, "You could get us out of a hell of a bind. We have got a
lot of it."
I said, "If I could one or two, I would haul it "
I said, "I cannot haul it, Harry, and you know it ." He said, "Okay, Jim."
Johnson did not work October 23 , but he worked on the 24th hauling slurry mix,
a liquid fertilizer . When he got home that evening he found a registered letter from
Holcomb asking him to furnish , by October 29, 1964, a "Doctor 's certificate stating
if you are physically able to or not able to perform your duties as a truckdriver for
L & H Trucking , Inc." Johnson considered the letter as an attempt by Holcomb to
make it appear that his inability to haul corn was some new development in his
career as a driver and was greatly angered by what he viewed as Holcomb 's distor-
tion of the facts. He immediately called Holcomb on the telephone and was per-
sonally abusive to Holcomb to such an extent that Holcomb hung up on him.
Johnson went to work on October 26 and when he was through after about 4
hours he asked Holcomb to have a "man-to-man talk about everything that was
going on out there all of a sudden ." Holcomb promptly agreed to talk to Johnson.
Johnson asked Holcomb why he wanted the doctor 's certificate , that he ( Johnson)
knew what it was going to say; namely, that he could not do heavy physical work.
Holcomb explained that the other drivers were complaining about Johnson's not
hauling any corn 10 Holcomb nevertheless insisted , "You will have to get that cer-
tificate because these drivers are raising hell ." But just as Johnson was leaving,
Holcomb added, as Johnson further testified , "Wait a minute , Jim .... If you haul
one or two loads of corn , you can forget the certificate ." Johnson again refused to
haul any corn.
Johnson was called to work on October 28, but when he got to the terminal he
told Holcomb that he had an appointment to get the doctor's certificate , Johnson
pleaded with Holcomb to permit him to haul the load for which he had been called,
but Holcomb insisted that he get the certificate . Johnson got a note from a doctor
on October 28 and gave it to Holcomb on October 29, when he arrived to take out
the run for which he had been called . The note states that Johnson "has a weak
back and an old knee injury and should not do heavy work."
Friday, October 30, was payday . Johnson was not called to work that day, but
he went to the terminal to pick up his pay. When he asked Holcomb why he had
not been called to work that day, Holcomb said he was sorry that he had a bad leg
and a bad back, but he would not be called anymore.
On November 3, 1964, the Respondent sent Johnson a registered letter notifying
him of his discharge , as follows:
In compliance of our letter October 23, 1964 we find that the doctor 's certifi-
cate issued by Doctor Woody of Springfield Clinic dated October 29 , 1964 states
that you are physically unable to perform your duties as a truck driver for
L & H Trucking Inc.
Also, because in the past you have refused loads saying that your leg and
back was injured and you could not do the work required.
Therefore this letter is to notify you of your termination of employment with
L & H Trucking Inc.
E. Conclusion
1. The discharge of Patterson in alleged violation of Section 8 (a) (3) of the Act
While Holcomb denied all knowledge of Patterson 's union activities , I find that
certainly by the time Holcomb decided to discharge Patterson on September 21,
Holcomb had received information concerning Patterson 's activities on behalf of the
Union. I find further , despite the background evidence discussed in section III, A,
above, that Holcomb was not sympathetic toward the prounion moves of its employ-
9 Previously Lawler had encountered Johnson on the street and had obtained his ad-
dress from him.
to Corn was not only harder physically to handle with respect to loading and unloading
than the other commodities hauled by the Respondent, but also the pay was less for
hauling corn.
L. & H. TRUCKING, INC. 115
ees during the campaign in the second half of September 1964. While the back-
ground evidence indicates that Holcomb had no hostility to the organization of his
employees by the Union and may even have welcomed such a move in the abstract,
the credible testimony of various employees establishes that Holcomb, when actu-
ally confronted with organizing activities among his employees, indicated his oppo-
sition to such a move in conversations with various employees. Although Hol-
comb's reaction upon receiving information concerning the employees organizing
activities was rather mild in comparison with the typical case, nevertheless, I find
that at the time he decided to discharge Patterson, Holcomb did not look with favor
upon the employees' organizing activities.
In view of this finding, since Patterson was the instigator of and one of the leaders
in the union movement at the terminal, it is necessary for me to determine whether
Patterson 's union activities were a factor of any significance in his discharge. Upon
all of the facts of the case, I conclude that they were not, and that Holcomb simply
lost patience with the attitude shown by Patterson during the September 9 conver-
sation when he tried to find out why Patterson objected to leaving on his runs after
7 a.m. and to being assigned more than one run a day. On this occasion , it will be
recalled, Patterson frankly told Holcomb that he was dissatisfied with his job, that
he would quit if he were physically able to obtain another job. Holcomb never
actually saw Patterson again until after the decision was reached to let him go.
The September 9 conversation, which occurred only a few days after Patterson's first
visit to the union hall, too soon, I find, for word of it to have reached Holcomb,
continued to rankle in Holcomb. Patterson was off from September 9 through
September 15, ostensibly because of his bad leg. Holcomb was away the last 3 days
which Patterson worked. Upon Holcomb's return, he checked with Patterson's
doctor who confirmed that Patterson was physically able to work . Yet Patterson
had taken the position in the September 9 discussion that his injuries in the February 4
accident prevented him from getting any other job and he blamed the Respondent
for his predicament . Holcomb, according to his testimony , reflected on the Patter-
son situation over the weekend . He recalled Patterson 's extremely ungrateful reac-
tion when the Respondent commenced deducting from his wages installments on the
insurance premiums which the Respondent had paid for Patterson so to avoid Pat-
terson's loss of the $57.50 weekly disability payments. Holcomb, according to his
testimony, considered the Respondent's inability to use Patterson for any hauling for
W. R. Grace Co., one of the Respondent's biggest customers, because of the adverse
report on Patterson received by Grace from one of its customers. This lessened the
availability of loads for Patterson to haul. Holcomb further took into consideration
the fact that the season for hauling road oil was about at an end. When asked about
his reasons for discharging Patterson, Holcomb further testified that the "whole
thing that triggered me off was that we had . . . tried to be decent people with Mr.
Patterson, paying his insurance. This is one of the things." A moment earlier in
his testimony Holcomb had stated that Patterson had told him that "he was dissatis-
fied with me and with our company, and that if he could go some place and-if he
could take a physical, he would . . . . And I decided if that was his attitude then,
we didn't need him because he was physically able to go out and work the doctor
said." While I have found Holcomb's testimony not to be reliable in several respects,
I conclude that with respect to the above-quoted testimony Holcomb was telling the
truth. Upon all of the evidence, I conclude that Patterson's prounion activities were
not a factor in his discharge. Accordingly, the allegations of the complaint dealing
with Patterson 's discharge will be dismissed."
2. The discharge of Johnson in alleged violation of Section 8(a) (3) of the Act
As found above, Johnson was discharged on October 30 following his refusal, on
October 23, to accommodate Holcomb by hauling one or two loads of corn. This
11 In reaching this conclusion I have not overlooked the General Counsel's argument
based upon the asserted inconsistencies between the explanation for the discharge of
Patterson given by Holcomb in an affidavit given to a Board agent on October 15, 1964,
and the explanation given by Holcomb in his testimony at the hearing . I recognize that
the fact that an employer gives inconsistent explanations at various times for discharging
an employee may give rise to an inference that the employer is groping for excuses to
hide the real reason for his action against an employee. However , this is an inference
which may be drawn where a Trial Examiner has reason to doubt the employer 's explana-
tion. In this case, the facts in my opinion tend to bear out Holeomb's testimony as to his
reasons for discharging Patterson , and, as indicated above, I believe that Holcomb was
telling the truth in this regard.
212-809-66-vol. 155-9
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusal occurred just as the com-hauling season was reaching its peak. In fact in
the next 6 working days which elapsed between Johnson's refusal and his discharge,
the Respondent hauled 69 loads of corn, which was more than in any other com-
parable period during the corn-hauling season.12 As above stated, corn hauling is
not only a less lucrative type of work, but is also more arduous to perform. As
Johnson testified, Holcomb told him on October 26 when he had a "man-to-man" talk
with Johnson, that "the drivers are complaining about you not hauling corn and not
taking your turn on other materials."
Johnson was one of the union supporters and had worked to sign up other drivers
in the Union. He was not nearly as active as Patterson, however. While I find, con-
trary to Holcomb's testimony in this regard, that Holcomb was aware of Johnson's
support of the Union, the record does not warrant the inference that Holcomb
regarded Johnson as one of the ringleaders in the union movement.
At the time of Johnson's discharge almost a month had passed since Holcomb had
agreed to recognize the Union without an election. Negotiations for the coal-hauling
contract, which required union drivers, were progressing. The Respondent com-
menced negotiating a collective-bargaining contract with the Union about 2 weeks
after Johnson's discharge. Under all the circumstances, it is unreasonable to infer
that Holcomb was motivated by union animus in effecting Johnson's discharge.
While Johnson had not done any corn hauling since 1962 because of previous
injuries to his legs and back, the Respondent was not obligated to accord Johnson
a preferred position indefinitely because of his injuries. This is particularly true
since other drivers were complaining about the preference accorded Johnson. I find
that Holcomb regarded Johnson as being unreasonable in failing to help him out in
the corn-hauling emergency with which he was faced and decided not to put up with
the situation any longer. A preponderance of the credible testimony fails to estab-
lish that Holcomb discharged Johnson because of his prounion activities. The alle-
gations of the complaint with respect to Johnson will be dismissed.
3. The alleged violations of Section 8(a) (1) of the Act
I have found that Holcomb on several occasions in September 1964 questioned
various of the Respondent's employees concerning what they knew of the union
movement. I have further found that in the course of a conversation with Lucy on
September 18 Holcomb went out of his way to mention the possibility of the Respond-
ent's selling its equipment in an effort to sway Lucy against the Union, and that in
the same conversation Holcomb suggested that certain privileges might have to be
withdrawn if the union movement was successful. Such threats, although veiled in
tone, and made to only one employee on a single occasion, appear to fall within the
ban of Section 8(a)(1) of the Act against employer invasion of employee rights
under Section 7 of the Act. However, under the unusual circumstances of this case,
with the Respondent having promptly signed an agreement to recognize the Union
and not long thereafter having entered into a collective-bargaining contract with the
Union for a 3-year term, I do not believe that it would effectuate the policies of the
Act to issue a cease-and-desist order based upon this single incident. Champion
Pneumatic Machinery Co., 152 NLRB 300; American Gilsonite Company, 122 NLRB
1006, 1007; Allied Chemical Corporation, National Aniline Division (Columbia
Plant), 143 NLRB 260, 263, and cases therein cited. In view of my conclusion in
this regard I do not deem it reasonable to treat Holcomb's questioning of the drivers,
which standing alone was not coercive in character, as taking on a coercive aspect
because of the veiled threats to Lucy on one occasion. For the foregoing reasons
my recommended order will provide for the dismissal of Section 8(a)(1) allegations
of the complaint, as well as the Section 8(a) (3) allegations.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local 619, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization within the meaning of Section
2(5) of the Act.
v This finding is based upon my understanding of Vice President Lawler's testimony
at p. 104 of the record. I find that Lawler inadvertently gave two listings of loads for
October 26, when one should have been for October 27, for which no listing was given.
THE ROGERS MFG. CO. 117
3. The Respondent has not terminated the employment of Clarence Patterson and
James L. Johnson in violation of Section 8(a)(3) and (1) of the Act, as alleged in
paragraphs VII, VIII, and IX of the complaint.
4. The Respondent has engaged in no unfair labor practices warranting the issu-
ance of a remedial order.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is
recommended that the consolidated complaint in Cases Nos . 38-CA-23 (formerly
13-CA-6685 ) and 38-CA-31 (formerly 13-CA-6794) be, and it hereby is, dismissed.
The Rogers Mfg. Co. and International Chemical Workers Union,
AFL-CIO. Case No. 8-CA-3767. October 11, 1965
DECISION AND ORDER
On July 26, 1965, Trial Examiner Louis Libbin issued his Decision
in the above-entitled proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor practices and recommend-
ing that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's Decision. There-
after, Respondent filed exceptions to the Trial Examiner's Decision and
a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this case, including the
exceptions and brief, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.1
[The Board adopted the Trial Examiner's Recommended Order.] 2
" These findings and conclusions are based , in part, upon credibility determinations of
the Trial Examiner , to which the Respondent has excepted , alleging that the Trial Exam-
iner was biased and prejudiced . After a careful review of the record , we conclude that the
Trial Examiner 's credibility findings are not contrary to the clear preponderance of all
the relevant evidence . Accordingly , we find no basis for disturbing the Trial Examiner's
credibility findings in this case , and we reject the charge of bias and prejudice on the
part of the Trial Examiner. Standard Dry Wall Products, Inc., 91 NLRB 544 , enfd. 188
F. 2d 362 ( C.A.3).
2 The note paragraph immediately below the signature line at the bottom of the Ap-
pendix attached to the Trial Examiner's Decision is amended to read: "In the event the
above-named employee is presently serving in the Armed Forces of the United States,
we will notify her of her right to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military Training and Service Act of 1948,
as amended , after discharge from the Armed Forces."
155 NLRB No. 17.