East Texas Motor Freight Lines

National Labor Relations Board - Board Decisions

Feb 25, 1943

47 N.L.R.B. 1023 (N.L.R.B. 1943)

In the Matter of E AsT TEXAS MOTOR FREIGHT LINES and ' INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS , C71AITFFEURS, WAREHOUSEMEN'
AND HELPERS OF AMERICA , LOOAL #47, A. F. of L.
Case No. C-X 67.-D.eeided February ,25, 1943-
Jurisdiction : motor transportation industry.
Unfair Labor Practices
In General: anti-union expressions of respondent's manager attributable to re-
spondent under the circumstances even though they were merely expressions of
personal opinion of manager.
Interference, Restraint, and Coercion: questioning employees concerning union
membership; expressing displeasure at the employees' affiliation with the union
without first consulting the employer, suggesting that they resign from the
union and the respondent's employment.
Discrimination: inducing or compelling employees to resign.
Remedial Orders: cease and desist unfair labor practices; no reinstatement
ordered when at the time of the hearing the employees were employed else-
where and testified that they did not desire reinstatement; under the circum-
stances of the case no back pay awarded.
Evidence : signed statements of resigned employees secured by employer to the
effect that they resigned of their own free will, found of slight probative value
as compared with their own testimony disproving such statements
Mr. Robert F. Proctor, for the Board
Callaway di Reed, by Mr. Carl B. Callaway, of Dallas, Tex., for the
respondent.
Mr. George J. Hadjino ff, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges 1 duly filed by International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Local #47,
affiliated with the American Federation of Labor, herein called the
Union, the National Labor Relations Board, herein called the Board,
by the -Regional Director for the Sixteenth Region (Fort Worth,
Texas), issued,'its complaint dated October 28, 1942, against East
Texas Motor Freight Lines, Fort Worth, Texas, herein called the
r
i The original charge was filed on July 20 1942, the first amended charge on July 23,
1942, and second amended charge on September 17, 1942.
47N.L R.B,No.128.
1023
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent , alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the
meaning of Section 8 ( 1) and (3) and Section 2 (6) and ( 7) of the
National Labor Relations Act, 49 Stat . 449, herein called the Act.
Copies of the complaint together wifh notice of hearing thereon, were,
duly served upon the respondent and the Union.
With respect to the unfair labor practices , the complaint alleged in
substance : ( 1) that on or about June 23, 1942 , the,respondent, by its
officers and agents, more particularly by, K. F. Wyatt, made disparag-
ing remarks to its employees about the Union ; urged and persuaded
its employees not to become members of or remain affiliated with the
Union; told its employees that they might as well look for other jobs`
and that Wyatt would "ride them as long as they stayed on-the job
and until they quit"; that becoming members of the Union would re-
flect on their jobs'; that it could find a hundred things to fire them for;
and thAt when the respondent's president found out that they had
joined the Union "he might send over instructions to find reasons to fire
all of them'"; (2) that the respondent, on or'about June 30, 1942, dis=
charged Edmond A. Slate and Gordon Pickering, or caused these em-
ployees to terminate their employment with the respondent, and
thereafter refused to reinstate them for the reason that they joined or
assisted the Union; and (3) that by the aforesaid acts and conduct the
respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
On November 24;1942, during the course of the hearing, the respond-
ent filed an answer admitting certain allegations of the complaint in
respect to its business; denying that it had engaged in the alleged un-
fair labor practices ; and averring that Slate and Pickering voluntarily
quit their employment, with the respondent.
Pursuant to notice, a hearing was held at Fort' Worth, Texas, on
November 23 and 24, 1942,, before W. P. Webb, the Trial Examiner,
,duly designated by the Acting Chief Trial Examiner. The Board
and the respondent were represented by counsel and participated in the
hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded
all parties . A motion by counsel for the Board to conform the plead-
ings to,the proof in respect to minor inaccuracies was granted by the
Trial Examiner without objection at the conclusion of the Board's
case. During the course of the hearing, the Trial Examiner made vuiri-
ous rulings on other motions and on objections to the admission of
evidence. , The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings are
hereby affirmed. At the 'conclusion of the hearing, counsel for the
Board and counsel for the respondent presented oral argument to the
Trial Examiner.
EAST TEXAS MOTOR FREIGHT LINES 1025 )
On December 14, 1942, the Trial Examiner issued his Intermediate
Report, copies of,which were duly served upon all parties, in which
he found that the respondent had engaged in and ,was engaging in
unfair labor practices" affecting commerce, within the meaning of
Section 8 (1) and Section 2 (6) and (7) of the Act, and recommended
that the respondent cease and desist therefrom and take certain affirma=
tive action designed to effectuate the policies of the Act. , He also
recommended that the complaint,' insofar as it alleged that Edmond
Slate and Gordon ' Pickering had been discriminated against, be
dismissed. On January 7, 1943, the respondent filed exceptions to
the Intermediate Report. The Board has considered the exceptions
-and finds them to be without merit insofar as they are inconsistent
with the findings of fact, conclusions of law, and order set forth below.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
East Texas Motor Freight Lines, a Texas corporation having its
principal office at 422 North Walton Street, Dallas, Texas, is engaged
in transporting and delivering goods, wares, merchandise, and general
commodities, by motor vehicles in the States of Texas, Louisiana,
Arkansas, Tennessee, Missouri, and Illinois. It operates as a common
carrier under certain permits issued to it by the Interstate Commerce
Commission. In such operations the respondent maintains various
terminals, stations, or depots, within the aforesaid States, including a
depot at 115 South Boaz Street, Fort Worth, Texas, at which the unfair
labor practices occurred. , During the current year the respondent has
handled over 100,000 tons of goods, wares, or commodities of which
approximately 25 percent was transported in interstate commerce.
The respondent concedes that it is engaged In commerce within the
meaning of the Act.
II. THE ORGANIZATION INVOLVED
International Brotherhood of'Teamsters, Chauffeurs, Warehousemen
and Helpers of America,, Local #47, affiliated with the American
Federation of Labor, is a labor organization admitting to membership
employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
At all times material herein the personnel of the Fort Worth depot
of the respondent was composed of K. F. Wyatt, manager ,•- 2, Clarence
2The respondent admits that Wyatt was manager of the Foit Worth depot and had
authority to hire and discharge employees
_ 513024-43-voL,47-05
cG.
1026 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
Smith, Solicitor and dock supervisor; Eleanor Andress, cashier; and
four truck drivers, Edmond Slate, Gordon Pickering, Walter Hill, and
Gordon Tranthal.
Prior to 1942 there had been no union activity among the respond-
ent's employees at the Fort Worth depot. On or about June 15, 1942,
all of the drivers signed application cards for membership in the
Union. Shortly thereafter W. F. Derden, business representative of
the Union, informed O. D. Thornhill, the respondent's president and
general manager at Dallas, Texas, by telephone, that the Union repre-
sented a majority of the truck drivers at the Fort Worth depot and
desired to negotiate a contract with the respondent for these employees.
Thornhill advised Derden that a conference could not be arranged at
that time because he was leaving Dallas on a trip but that 'he would
contact the Union upon his return. Thornhill then telephoned to
Wyatt at Fort Worth and instructed him to find out if the drivers had
joined the Union, further instructing him not to criticize the men if
they had joined, since they had a right to do so.
According to the undenied testimony of Hill, he had several conver-
sations with Wyatt on the afternoon of June 23, 1942, during which
Wyatt asked him if he or any of the other drivers had joined the Union.
Hill admitted that he had .joined and asked Wyatt if he thought it
would be advisable for him to quit his job; Wya;tt•replied that since
Hill had joined the Union without previously advising him, he thought
it would be best for Hill to resign rather than be discharged. During
the conversation Wyatt 'told Hill that he would have to report the
matter to Dallas and that he did not know what action might be taken
at Dallas, but that if he, Wyatt, were running the business he would
close it up before he would let someone else tell him how to run it. We
credit the testimony of Hill, as did the Trial Examiner.
During the same afternoon Wyatt drove to the offices of another
company, where Pickering was picking up some uniforms, and asked
Pickering whether or not he had joined the Uiiion. Pickering,ad•-
mitted that he had done so. According to the testimony of Pickering
and Wyatt, Pickering then asked whether or not Wyatt wished him
to resign and Wyatt replied in the negative.
At the close of working hours on June 23, Wyatt met with all four
drivers, on the loading dock. Wyatt admitted addressing them as
follows :
I asked each one of them if they had signed applications for
membership in a union; they all said they, had. I asked them if
they cared to withdraw their applications, and they all said they
did not, and I told them that was' fine and dandy then, to- just
go on home and come back to work in the morning .. .
b
EAST TEXAS MOTOR • FREIGHT LINES 1027
I told all those men that- as far as- the company was concerned
it didn't make any difference one way or another whether they
were union or not union .. .
Well, I told all of them that I had lost confidence in them, the
confidence that I had had before, because they had gone and done
things that would affect their jobs without consulting me and
without talking the thing over with me. I told them that they
came to me and told me their personal troubles, and family
troubles, and I saw no reason why they shouldn't, if they had any
troubles on their jobs, why they shouldn't come and talk those
things over with me . . .
Well, I had the personal feeling that there I was being let
down, so to speak. It was purely a personal matter between these
men and myself because we had been close together there, close
friends, and I felt that they should come and talk to me about
those things or anything that would pertain to their jobs one way
or the other.
On the evening of June 23 Wyatt went into a cafe where Hill and
Slate were sitting, and asked to speak to Slate. Slate and Wyatt went
outside the cafe, Hill joining them later. Hill and Slate testified
that the conversation concerned resignations from the Company. Both
testified that Wyatt expressed the opinion that, it .would be best for
them to resign, Hill testifying that Wyatt stated "it was the only
decent thing or white thing, I believe was the way he put it, we
could do." While differing in some respects with the details of the
conversation as related by Hill and Slate, Wyatt did not deny that he
had expressed approval of their resignation because of their union
membership. Both Hill and Slate went to the respondent's offices the
following morning and resigned.3 We credit the testimony of Hill
and Slate.
According to Pickerings' undenied testimony, on June 25, after the
other three drivers had resigned, Wyatt suggested to Pickering, with-
out,,any request by Pickering, that he take the following day off to
look for another position. , Concerning this. conversation, Wyatt tes-
tified as follows : ' •
I told Mr. Pickering that I had lost confidence in him because
lie hadn't discussed these things with me, that I didn't have the
confidence in him that I had before and I felt that if he would d(5
one thing and not tell me about it that he would probably do other
things and, I would probably have to watch him and stay right
behind him all the time and that is the way I felt about it.
BThe respondent 's records indicate that Tranthal, who was in'the'armed eery]egr^ at rlhe•
time of the hearing and did not testify, also resigned on Tune 24
f 1028 DECISIONS OF . NATIONAL LABOR' RELATIONS BOARD
I remember some parts of that conversation; Mr. -Pickering
asked me what I would do if I were in his place, and I said,
"Gordon, under the circumstances, if I were, in your place, I
would look around for another job, because I don't have the con-
fidence in you, and I wouldn't want to work for a roan that
didn't have confidence in me."
Pickering resigned the same day. We find that Wyatt suggested
that Pickering take the following day off for the purpose of securing
another position and that Wyatt made the statements substantially as
set forth in his testimony quoted above.
Upon the facts recited above, we find, in accord with the conclusion
of the Trial Examiner, that the respondent interfered with the em-
ployees' rights to self-organization. While an employer, upon de-
mand for recognition by a union, is entitled to request proof that the
organization in fact represents a majority of its employees, the effect
of questioning the employees directly, whether individually or col-
lectively, concerning their union membership is coercive and hence
prohibited by the Act .4
The coercive statements of Wyatt, expressing his displeasure at
the drivers' union membership, suggesting that they resign from the
Union and their employment, and the other statements found above,
are likewise attributable to the respondent. This is so, even though
the statements were contrary to Thornhill's instruction and were, as
Wyatt testified, merely expressions of his personal opinion. To the
employees over whom he had authority, including the right to hire
and discharge, Wyatt represented the management. The employees
were unaware that he acted contrary to his superior's instructions.
In addition, these employees could as ill afford to'offend the "personal"
opinion 'of Wyatt as they could the "official" opinion of the re-
spondent.5
We find that by questioning'the employees concerning their union
membership and by the statements of Wyatt, as set forth above, the
respondent interfered with, restrained, and coerced its employees in
the exercise of the, rights guaranteed in Section 7 of the Act.
B. Discrimination in, regard to hire and tenure of employment
Although the Trial Examiner found that Wyatt had engaged in
activities substantially as set forth above, he concluded that the re-
4H. J Heinz Co v N L R B, 311 U S 514 ; and Valley Mould & Iron Corporation v
N.LR B, 116F ( 2d)760 (C C.A.7) c.d 313U.S 590
5 Matter of William Randolph Hearst , et at and American Newspaper Guild, Seattle
Chapter, 2 N L"R B 530 , 542-43, enf 'd in 102 F ( 2d) 658, (C. C A 9), and Matter of
United Dredging Company and Inland Boatman's Division, National Maritime Union, Gulf
District , C 1 0, 30 N L R B 739, 757.
EAST TEXAS MOTOR FREIGHT LINES . 1029
spondent had not violated Section 8 (3) of the Act. In this, respect
he clearly erred. Although each of the employees resigned, an em-
ployee who resigns because he is given to understand that his employ-
er's hostility towards his union membership will adversely affect-his
future conditions of employment, has been discriminated against
within the meaning of Section 8 (3) of the Act.. Such a resignation
is tantamount to a discharges •
As found above, Wyatt indicated to his employees that he had lost
confidence in them because they had joined the Union. He further
advised them that under similar conditions he would resign; that
resigning was "the only decent or white thing" they could do. The
logical consequence of such statements is amply attested by the resig-
nation of all four drivers within 2 days.
The conclusion that,Wyatt's activities and statements induced the
resignations does not rest, however, solely upon logical inferences
drawn from these facts. Hill testified at the hearing that he resigned
because he "just didn't want to be fired" and because Wyatt "didn't like
the idea of (our) belonging to the Union."' Pickering testified that
he resigned because he "'felt like they wanted him to quit." While
Slate's testimony concerning the reason for his resignation is somewhat
confused,' we think it is a reasonable inference from his entire testis
mony and the surrounding circumstances, and we find, that Slate also
resigned because of Wyatt's activities. Nor are we impressed by the
signed statements secured by Wyatt from' Pickering and Slate after
they left the respondent's employ, to the effect that they voluntarily
quit their employment. Insofar, as these statements may be deemed
inconsistent with our conclusion that their resignations were, the result
of Wyatt's activities, they are of slight probative value as compared
with the sworn testimony of the witnesses.
We find that Edmond Slate and Gordon Pickering resigned their
employment because of Wyatt's hostility to their union membership
and activity. We find further that by so inducing these resignations
the respondent has discriminated in regard to,the hire,and tenure of
employment of Edmond Slate and Gordon Pickering, -thereby discour-
aging membership in the Union and interfering with, restraining-, and
9 See N L R B. v Chicago Apparatus Co, 116 F (2d) 753 (C C A. 7) enf. 12 N. L. R B.
1002; Matter of Sun Shipbuilding and Dry Dock Co. and/Industrial Union of Marine and
Shipbuilding Workers of America, 38 N L R. B 234; and Matter of the Baltimore Transit
Company and its affiliated Companies and Amalgamated Association of Street , Electric
Railway and Motor Coach Employees of America , Division 1300 (,AFL), 47 N. L. R B. 109.
7 The complaint does not allege that either Hill or Tranthal was disci iminated against
and no findings will be made in this respect . Hill's testimony is relevant nevertheless in,
establishing the cause of the resignations and is no less so because the record establishes
that he had previously talked about resigning to accept a position with another company.
Hill in fact did nothing about resigning until after Wyatt's activities on June 23.
In the early -part of his testimony , Slate, in response to the question whether his resigna-
tion was not due to Wyatt' s activities , replied in the negative ; he later testified that in the
course of the conversatioii with Wyatt, that it was just after Wyatt suggested that be
withdraw from the Union ; that Slate stated if Wyatt felt that way about it he would resign.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coercing its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
IT. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connectioli with the operations of the respondent described
in Section I above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and tend to lead
to labor disputes burdening and obstructing commerce and the free
flow of commerce:
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair
labor practices within the meaning of the Act, it will be recommended
that it cease and desist, therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
We have found that the respondent induced the resignation of Ed-
mond Slate and Gordon Pickering because of their membership in the
Union. However, both Pickering and Slate were employed elsewhere
at the time of the hearing and testified that they did not desire rein-
statement. For this, reason we will not direct the respondent to rein-
state them. Under all the circumstances of this case we do not feel
that the purposes of the Act will be effectuated by awarding back pay
to these employees. No such provision will be made.
Upon the basis of the above findings and upon the entire, record in
the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Brotherhood, of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local #47, affiliated with the American
Federation of Labor, is a labor organization, within the meaning' of
Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment
of Edmond Slate and Gordon Pickering and thereby discouraging
membership in International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local #47, affiliated with
the American Federation of Labor, the respondent has engaged in and
is engaging in unfair labor practices, within the meaning of Section 8
(3) of the Act.
3. By interfering with, restraining, and coercing its employees in the
,exercise of the rights guaranteed in Section 7 of the Act, the respon-
dent has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (1) of the Act. I
EAST TEXAS MOTOR FREIGHT LINES 1031
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act'.
ORDER
'Upon the basis of the above findings of fact and conclusions of law,
the National Labor Relations Board hereby orders that the respondent,
East Texas Motor Freight Lines, Fort Worth, Texas, and its agents,
officers, successors, and assigns shall :
Cease and Desist from :
(a) ' Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local
#47, affiliated with the American Federation of Labor, or in any other
labor organization by discriminating in regard to the hire and tenure
of employment of its employees because of their union membership or
activities;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization,, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual aid
or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post immediately in conspicuous places in - its depot at Fort
Worth, Texas, and maintain for a period of at least sixty (60) consecu-
tive days from the date of posting, notices to its employees stating that
the respondent will not engage in the conduct from which it is ordered
to cease and desist in paragraphs.l (a) and (b) of this Order,
(b) Notify the Regional Director for the Sixteenth Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
MR. WM. M. LEISERSON took no part in the consideration of the above
decision and order.
}