English Freight Co.

National Labor Relations Board - Board Decisions

Apr 6, 1945

61 N.L.R.B. 375 (N.L.R.B. 1945)

In the Matter of ENGLISH FREIGHT COMPANY and INTERNATIONAL
BROTHERHOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN & HELP-
ERS OF A .MERIC A, LOCAL 745, AFL
Case No. 16-C-1093.-Decided April 6,1945
DECISION
AND
ORDER
On November 23, 1944, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices af-
fecting commerce and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the In-
termediate Report annexed hereto. The respondent has filed no ex-
ceptions to the Intermediate Report. No request has been made for
oral argument before the Board at Washington, D. C., and none has
been held. The Board has considered the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. The Board has considered
the Intermediate Report and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner. Nothing in our order hereinafter set forth requiring the re-
instatement of D. D. Thomas, found herein to have been discriminator-
ily discharged by the respondent, shall be construed to preclude the re-
spondent from discharging or otherwise disciplining Thomas, in the
event of any future misconduct on his part, for any reason other than
his union membership or concerted activities.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, English Freight Company,
Dallas, Texas, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local
745, AFL, or any other labor organization of its employees, by dis-
61 N. L. R. B, No. 51.
375
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charging or refusing to reinstate any of its employees, or in any other
manner discriminating in regard to their hire or tenure of employ-
ment, or any term or condition of employment;
(b) In any other 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 International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local
745, AFL, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose 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) Offer to D. D. Thomas immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority and other rights or privileges;
(b) Make whole D. D. Thomas for any loss of pay he may have
suffered or may suffer by reason of the respondent's discrimination
against him, by payment to him of a sum of money equal to that
which he normally would have earned as wages from the date of
the discrimination to the date of the respondent's offer of reinstate-
ment, less his net earnings during said period;
(c) Post at its plant at Dallas, Texas, copies of the notice attached
hereto, marked "Appendix A." Copies of said notice, to be furnished
by the Regional Director of the Sixteenth Region, shall, after being
duly signed by the respondent's representative, be posted by the re-
spondent immediately upon receipt thereof, and maintained by it for
sixty (60) consecutive days thereafter, in conspicuous places, includ-
ing 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 other material;
(d) Notify the Regional Director for the Sixteenth Region, in
writing within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
APPENDIX A
NOTICE To ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER
of the National Labor Relations Board, and in order to effectuate the
policies of the National Labor Relations Act, we hereby notify our
employees that :
ENGLISH FREIGHT COMPANY 377
We will not in any 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 International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Local 745, AFL, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
We will offer to the employees named below immediate and
full reinstatement to their former or substantially, equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any
loss of pay suffered as a result of the discrimination.
D. D. Thomas
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of mem-
bership in or activity on behalf of any such labor organization.
ENGLISH FREIGHT COMPANY
(Employer)
Dated ------------------By ------------------------------------
(Representative ) (Title)
NOTE.-Any of the above- named employees presently serving in the armed forces of the
United States will be offered full reinstatement upon application in accordance with the
Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. John H. Garver, for the Board.
Mr. Carl B. Callaway, of Dallas, Tex., for the respondent.
Messrs. J. L. Davis and T. T. Neal, of Dallas, Tex., for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed on July 15, 1944, by International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Local 745, AFL, herein
called the Union, the National Labor Relations Board, herein called the Board, by
its Acting Regional Director for the Sixteenth Region (Fort Worth, Texas),
issued its complaint dated August 22, 1944, against English Freight Company,
herein called the 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 and notice of
hearing thereon were duly served on the respondent and the Union.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent: (1) on or about July 6, 1944, discharged D. D. Thomas,'
and at all times since that date has failed and refused to reinstate said employee
because he was a member of and active in behalf of the Union; and (2) from on
or about June 18, 1944, to August 22, 1944, through certain of its officers, agents
and employees has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act, by vilifying, disparaging
and expressing disapproval of the Union; by interrogating its employees concern-
ing their union affiliation ; by urging, persuading, threatening, and warning its
employees to refrain fioin assisting, becoming members of or remaining members
of the Union ; and by keeping under surveillance the meeting places of the Union
The respondent did not file any written answer, but at the hearing answered
orally on the record, denying the commission of any unfair labor practices.
Pursuant to notice, a hearing was held at Dallas, Texas, on September 12 and
13, 1944, before the undersigned Trial Examiner, duly designated by the Chief
Trial Examiner. The Board and the respondent were represented by counsel, and
the Union by its representatives. All parties participated in the hearing Full
opportunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues were afforded all parties.
At the close of the case, counsel for the respondent moved to strike from the
record all testimony relating to Oscar English and Homer McKinnon on the
ground that the evidence did not show them to be so connected with the respondent
to make any of their acts or statements binding upon the respondent. Ruling on
this motion was reserved. The motion is hereby denied. At the close of the case,
counsel for the Board moved to conform the complaint to the facts as to dates and
names This motion was granted without objection.
At the close of the hearing, counsel for the Board and the respondent argued
orally on the record before the undersigned. None of the parties filed briefs
although given an opportunity to do so.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The English Freight Company is a Texas corporation having its principal office
and place of business in Dallas, Texas. Pursuant to authorization of the Inter-
state Commerce Commission, the company is engaged in transporting general
commodities in the States of Texas and Oklahoma.
During the year 1943, the company hauled 140 million pounds of freight, produc-
ing a revenue of $1,250,000 00. Of this amount, 35 million pounds, or about
$400,000.00 in value, represent freight transported to and through States of the
United States other than the State of Texas. The transportation of war materials
constitutes more than 60 percent of the Company's business. The Company's busi-
ness during the year 1944, has been approximately the same as during the year
1943.
During the hearing the respondent admitted that it is engaged in commerce
within the meaning of the Act.
1 The complaint incorrectly showed the name to be D V Thomas This error was cor-
rected at the hearing by a motion to conform the pleadings to the evidence
ENGLISH FREIGHT COMPANY
H. THE ORGANIZATION INVOLVED
379
International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Help-
ers of America, Local 745, AFL, is a labor organization which admits to member-
ship employees of the respondent.
III. - THE UNFAIR LABOR PRACTICES
. A. Interference, restraint, and coercion
For several months prior to June, 1944, the respondent's truck drivers had been
agitating for wage increases without success. A number of the drivers finally
decided that the wage increase situation might be helped if they joined the Union.
To this end about 15 drivers met at the Union's headquarters on Sunday, June 18.
At this meeting all drivers present joined the Union. Prior to the meeting,
drivers Canady and D. D. Thomas, who had arrived early at the meeting hall,
decided to go to a nearby restaurant for coffee. On their way they met J. R
Cheatham, respondent's truck superintendent, who was in his car and who asked
them where they were going. They replied that they were going to get coffee
and Cheatham said, "You can't fool me, I know what you are all up to." Cheatham
also asked them where the rest of the drivers were, to which Thomas replied that
he had not seen any of the other drivers. Cheatham then remarked that some of
their cars were parked on the next street and that they would appear shortly.
He then parked his car and accompanied Canady and Thomas to the restaurant.
Later, as he was about to leave them, Cheatham said, "You'd better consider what
you're getting into ; it might be something you'd be sorry of . . . study it over."
He further stated that they should "think it over before you join up in anything."
Thomas replied that he had a head of his own and knew what he wanted to do 2
A few days after the union meeting of June 18, the Union advised the respond-
ent that it represented a majority of the respondent's employees.
On or about June 19 or 20, Thomas had a conversation with Harold Ellis, re-
spondent's agent at Houston, Texas. With respect to this conversation, Thomas
testified, and the undersigned finds, that Ellis asked him if he' had joined the
Union and if he had "one of those union slips" (the slip referred to was a receipt
for union dues) ; that he (Thomas) replied that he had such a slip ; and that Ellis
then said, "Why don't you give it to me and let me tear it up?" And that he did
not think "the company would ever go union." Ellis also had a similar conversa-
tion with driver Eugene Coyle Coyle testified, and the undersigned finds, that
Ellis asked him if he had joined the Union and if he had a union slip ; that he
(Coyle) replied in the affirmative ; and that Ellis then said, "Why don't you give
me that? This company will never go union. You've just throwed that much
money away."'
On about June 20 and 21, Cheatham told driver Stubbs that the drivers were
"trying to go union" and that Stubbs should "hold up on it for a few days."
At about this time or some few days later, Oscar English' had a conversation with
2 Both Canady and Thomas testified to the above conversation with Cheatham, sub-
stantially. Although Cheatham nas called as a witness by the respondent, he did not
deny the statements attributed to him by Canady and Thomas.
' The respondent admits that Ellis is a supervisory employee Ellis testified that he
"jokingly" asked for the slips In effect, his testimony constitutes a denial of the other
statements attributed to him by Thomas and Coyle
' Stubbs testified to the above without contradiction.
' Respondent contends that Oscar English is not a supervisory employee and therefore
that the respondent is not bound by statements made by him This contention is rejected
by the undersigned for reasons that will be fully discussed hereinafter . English was not
called as a witness.
380 DECISIONS - OF NATIONAL LABOR RELATIONS BOARD
Thomas and driver Leonard Price. With respect to this conversation, Thomas
testified without contradiction, and the undersigned finds, that English made the
following remarks : _
He just asked us if we intended to stay in the Union and he says, "It'll break
the Company if you boys do. We have tried to keep it one big happy family
and we intend to keep it that way." And he said, "=If you boys do go ahead and
join the union we can always find ways of getting rid of you if we wanted to,"
and "We like all you boys and want to keep all you drivers."
Thomas told English that he intended to remain in the Union.
About 1 week after June 18, the drivers held a meeting in Cheatham's office.
This meeting was held for the purpose of deciding whether or not the drivers
wanted to remain members of the Union. Cheatham was present prior to the
meeting and said to the drivers, "You can all go ahead and have a meeting in my
office and lock the doors." Cheatham did not attend the meeting. At the meet-
ing all the drivers decided to remain members of the Union and signed a paper to
that effect'
Either immediately prior to or just after the above related meeting of the
drivers in Cheatham's office, approximately 15 drivers conferred with Myra C.
English, president and owner of all common stock of the respondent corporation.
This meeting took place in the office used jointly by Myra C. English, and Clar-
ence Callaway, vice-president and general manager of respondent. With respect to
this meeting Stubbs testified, and the undersigned finds, that Homer McKinnon,'
a clerk for the respondent at Dallas, came to Stubbs and some other drivers and
told them that Myra English wanted to talk to them in the office, that at the
meeting Myra English told the drivers that she had heard of "this misunder-
standing" among the drivers," that she said she did not know "what this was
all about," and that she promised that a request for increases would be mailed
to the War Labor Board that night'
It is undisputed that both McKinnon and Cheatham solicited the drivers on com-
pany time to resign from the Union. Between them they obtained approximately
17 resignations. McKinnon solicited Thomas' resignation but Thomas refused It
further appears that Thomas was the only employee who refused to resign from the
" Other than Cheatham's presence prior to the meeting and his offer to let the drivers
use his office , the record does not show directly that Cheatham knew the purpose of the
meeting. The above facts were testified to without contradiction by Canady and the
undersigned credits his testimony in this connection . Further, the undersigned believes
and finds that Cheatham knew the purpose of and the result of this meeting. The subse-
quent acts of the respondent which will be hereinafter related clearly show this to be a rea-
sonable conclusion . The undersigned does not find that Cheatham's actions in this
connection constitute interference, restraint, and coercion, but merely relates the above
incident as background for subsequent events
t McKinnon's connection with management will be hereinafter discussed
"Stubbs at first testified that English said that she had heard that some of the drivers
had joined the Union. During cross-examination he denied that she had used the word
"union." Stubbs impressed the undersigned favorably as a witness, and believes that he
thought that English was referring to the organizational campaign of the Union when she
said that she had heard of a "misunderstanding."
'Myra English 's version of what was said by her at the meeting does not differ sub-
stantially from the above. She testified that at the beginning of the meeting she said,
"Well boys I understand you are all unhappy about something so just get it off your chests
and tell me what it is, all about it"? She testified that she had heard that the drivers
were dissatisfied over wages, but denied that she knew at the time of the meeting that the
drivers had joined the Union. She further testified that McKinnon had told her that the
drivers wanted to see her. McKinnon testified, in substance, that he first suggested to the
drivers that they talk to Myra English and that the drivers then expressed a desire for
the meeting
ENGLISH FREIGHT COMPANY 381
Union It is noteworthy that excepting two resignations dated June 21, and
another dated June 23, the balance of the resignations bear dates within a few days
after Thomas' discharge.1° The resignations that McKinnon secured were either
handed to Cheatham by McKinnon or placed by him on Cheatham's desk. Cheat-
ham mailed the resignations to the Union in envelopes that were supplied by the
respondent. All the resignations excepting one were mailed at the same hour
on July 12.'1
A sample of such solicitation is afforded by Canady's testimony. He testified,
and the undersigned finds, that Cheatham called him to his office, that he
(Cheatham) mentioned that Thomas was one of the leaders of the Union (Thomas
had been discharged at this time), and that after asking him to resign from
the Union, Cheatham said, "Well, the majority of the boys has withdrew and I'd
like for you to help me out if you could." 'Z
In soliciting driver Clevinger's resignation from the Union, McKinnon told him
that "some way" would be found to discharge those who did not resign. Further,
it is Stubbs' uncontradicted testimony that McKinnon told him, "We could always
find cause to weed you out ; you know you boys are always doing something and we
never do nothing to you for it but we can always find some way to weed you out"
CONCLUSIONS AS TO INTERFERENCE, RESIEAINT, AND COERCION
Oscar English is the brother-in-law of Myra English, and Homer McKinnon is
Oscar English's son-in-law. Aside from the family connections, the undersigned
is convinced that the evidence shows that the respondent is responsible for their
actions and statements, and so finds. Callaway testified as follows with re-
spect to Oscar English's duties :
Mr. Oscar English's headquarters are at Houston, Texas and he works with
our commission agents in solving any problems they might have in regard to
claims on freight or service by the trucks or not receiving freight or solicita-
tion of business or any items that might come up in connection with those
agencies with respect to trying to help them with their agency problems.
* * * * * *
No, sir, other than being interested in seeing that they [drivers] perform
their duties properly if they make any mistakes on their routes or runs, and he
catches them, he does report them to the company.
This testimony in itself clearly identifies Oscar English as part of management.
As for McKinnon, it is clear from the evidence that he solicited resignations from
the Union with the full knowledge, consent and approval of at least Cheatham.
In addition he acted as the agent of the respondent in arranging for the meeting
between Myra English and the drivers.
The undersigned finds that Myra English referred to the organizing campaign
of the Union when she mentioned a "misunderstanding" among the drivers and that
the purpose of her talk was to apprise the drivers that she was making a request
to the War Labor Board for an increase in wages, for the purpose of discouraging
membership in the Union.14 Her testimony that she did not know at the time
10 Thomas was discharged on July 6.
11 Cheatham's testimony on this point was evasive and absurd on its face
12 Cheatham denied making any reference to Thomas' discharge but otherwise admitted
the conversation Coyle and Stubbs also testified without contradiction that Cheatham
had requested them to resign from the Union.
13 Clevinger testified to the above statement without contradiction
34 Western Cartridge Co V. N. L. R. 'B, 134 F (2d) (C C. A 7), cert. den 320
U. S. 746.
639678-45-vol 6] 26
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the drivers had joined the Union is somewhat naive.15 Aside from the knowl-
edge of Cheatham and other of respondent's officials concerning the Union's
organizational efforts, the Union itself had notified the respondent that it rep-
resented a majority of employees at which time Callaway consulted with re-
spondent 's counsel . It is unreasonable to suppose that Callaway would not have
transmitted this information to Myra English. Moreover, the sequence of events
conclusively shows a deliberate and intensive campaign on respondent's part
to stamp out the Union.
Accordingly, the undersigned finds that, by the statements and actions of
Cheatham, Oscar English, Ellis, McKinnon and Myra English, the respondent has
interfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
B The discharge of D. D. Thomas
Prior to his discharge, Thomas worked for the respondent for about 4 years.
He joined the Union at the meeting held on June 18, 1944, and thereafter solicited
drivers to join the Union while on company time and property. The record
conclusively shows that Thomas was the most active employee on behalf of
the Union. Thomas' conversations with Cheatham on June 18, and his subse-
quent conversations with Oscar English and Ellis have been heretofore related.
Also as above stated, McKinnon solicited Thomas' resignation from the Union
and Thomas refused. It has been found that Thomas was the only driver who
refused to resign from the Union.
On July 6, 1944, Cheatham advised Thomas that Callaway wanted to see him
in his office Thomas reported to the office as requested and Callaway dis-
charged him.38
The respondent's contentions
.It is undisputed that for several years prior to July, 1944, the respondent had
had considerable difficulty placing public liability and property damage in-
surance due to its high accident record ; that equipment, and especially tires,
were not readily replaceable ; and that starting about May, 1944, the respondent
held safety meetings twice a week. Further, the undersigned finds that on or
about June 26, 1944, Callaway, by letter, advised Cheatham that drivers would
be dismissed if they drove in excess of 40 miles per hour '
McKinnon testified in substance that, at some time within 9 months from the
date of the hearing, he accompanied Thomas on a trip to Houston;' that Thomas
at times drove between 50 and 60 miles per hour ; that Thomas raced another
truck, switching off his lights until he passed it; and that he did not report
Thomas' driving when he returned to Dallas but did tell Callaway at a later
15 Myra English testified in effect that she was at the office for only part of the time
and that she knew very little concerning the operation of the business
11 Thomas testified that Callaway said he was going to lay him off until December 27
In this connection Callaway testified that he discharged Thomas and that as Thomas was
about to leave the office he ( Callaway ) gave him his draft deferment card and said, "Doe,
this at least is good until December the 27th " The undersigned is convinced and finds that
Thomas was discharged . Thomas ' confusion on this point is readily understandable in
view of the above
la The letter was not posted on the bulletin board and Cheatham did not testify that he
had ever advised the drivers concerning the speed limit or the contents of the letter.
Cheatham, however, did testify that he was constantly requesting the drivers to cut their
speed. None of the driver witnesses , from their testimony, appeared to have been
acquainted with this rule of a forty mile per hour speed limit
11
ENGLISH FREIGHT COMPANY 383
date, some two or three months prior to the hearing and prior to Thomas'
discharge.Y8
Ellis testified that at sometime in April, 1944, he trailed some of respondent's
trucks from Houston to Dallas, one of which was driven by Thomas ; that most
of the way Thomas drove between 50 and 55 miles per hour; and that without
mentioning names he told Callaway that he should check the speed of his drivers
on this run 29 Callaway testified he passed his report on to Cheatham and told
him to "check up on it." Cheatham testified that he called Ellis' report to
Thomas' attention ; that he told Thomas he would have to cut down his speed ;
and that Thomas promised he would reduce his speed 20
On about May 31, 1944, Thomas' truck turned over and caught fire. Driver
Cecil McMillan was "deadheading" back to Dallas with Thomas since McMillan's
truck had turned over the night before With respect to Thomas' accident,
Callaway testified that McMillan told him that before leaving Houston he and
Thomas had had about 51 or 6 bottles of beer apiece, that they drove 25 or 30
miles before eating dinner, and that in his (McMillan's) opinion the accident
had been caused by Thomas falling asleep.'
Callaway testified that on about July 3, a woman telephoned him and told him
that a certain numbered truck of respondent had the night before cut in on her
car and forced it off the road, that the same tiuck had later cut in on several
other cars ; and that he reported this to Cheatham who then told him that the
truck in question was Thomas' truck
With respect to the conversation at the time of discharge, Callaway testified
in substance that he related the incident complained of by a woman a few nights
before; that Thomas replied that he did not remember forcing a lady off the
road; that they then discussed Thomas' fast driving and previous accident ; that
Thomas admitted that he had been driving too fast, and that he finally told
Thomas that he would have to discharge him ". . . because we couldn't continue
to stay in business if we were going to operate our trucks on that basis " 22
18 It is noteworthy that, according to McKinnon , he probably told Callaway concerning
the incident approximately at sometime after the union meeting on June 18. Thomas
denied switching off lights to pass other trucks and racing them on this trip . Callaway
testified that the trip in question was made in March or April. Cheatham testified that he
-called McKinnon ' s report to Thomas ' attention and that Thomas replied that he would
correct his faults Cheatham did not testify as to the time of this conversation
10 Thomas admitted that he was trailed by Ellis and that he was driving approximately
50 miles per hour for part of the time.
20 Thomas denied this conversation and the undersigned credits his denial. Since Ellis
in his testimony indicated that he had trailed more than one of respondent's trucks and
testified that he had not mentioned any names in his report to Callaway, it is not plausible
that Cheatham would have talked to Thomas in particular concerning excessive speed.
21 McMillan was not available as a witness Callaway testified that McMillan first told
the above story to Cheatham who then reported it to him (Callaway ) and that he spoke
to McMillan when he next saw him. Callaway further testified that his conversation with
McMillan took place about 2 or 3 weeks after the accident , and that he did not discuss the
accident with Thomas until he discharged him. Cheatham , however, testified that McMillan
definitely did not tell him about the accident until after Thomas had been discharged and
that this conversation took place about a week after the discharge.
Thomas denied that he had had any beer on that night , and testified that the accident
was caused by a tire blowout . The undersigned credits Thomas ' denial.
22 Thomas also testified substantially as above, excepting that Thomas testified that he
told Callaway that he had driven 50 miles per hour which was too fast but that "you
hardly ever do catch me running over, 50 miles per hour at any place down hill or any-
where else " The undersigned credits Thomas' testimony in this connection .' It is not
clear from Callaway ' s testimony if he mentioned at the time of discharge McMillan 's story
concerning beer drinking . Thomas testified that he first heard of the beer drinking after
his discharge.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions as,to D. D. Thomas' discharge
The undersigned finds that Thomas was discharged on July 6, 1944, by the
respondent because of his membership in and activities on behalf of the Union.
All of the respondent's witnesses admit that Thomas was a good driver except
for his speed. In this connection it is significant that on August 21, 1944, drivers
Tate and McMillan were checked for speed and were found to be driving at the
rate of from 48 to 50 miles per hour. The respondent took no disciplinary action
against these employees except to warn them that "further violation will necessi-
tate more drastic action." Coyle testified without contradiction, and the under-
signed finds, that on the Friday preceding the hearing Cheatham told him that
he (Cheatham) had a report that (Coyle) had been checked at 60 miles per
hour ; that he was to receive a week's lay-off as punishment ; and that when he
(Coyle) said he did not want a lay-off for that length of time, Cheatham replied
that the lay-off would be only for the following Sunday night or "one trip off." n
The undersigned is convinced that the various charges or alleged charges against
Thomas were not taken seriously by the respondent until such time as it was
determined to discharge him for his union stand. The discrepancies in the
testimony of Cheatham 24 and Callaway with respect to the date when McMillan
first related his story clearly shows this to be the case. The fact that McKinnon
did not report on his trip to Houston with Thomas until sometime shortly before
Thomas' discharge further shows that the respondent was looking for an excuse
to fire him. In this connection Oscar English's and McKinnon's statements to
employees, as found above, to the effect that the respondent could always find an
excuse to discharge an employee become significant.. Thomas was the only
driver who refused to resign from the Union. This stamped him as a leader of
the opposition. That this was recognized by the respondent is evident from
Cheatham's statement to Canady to the effect that Thomas was one of the leaders
of the Union. This attitude of the respondent is further exemplified by the
uncontradicted testimony of Stubbs, to the effect, that after Thomas' discharge,
Cheatham told him in a joking manner that he (Cheatham) guessed that "Doc
Thomas got about fifty dollars" for organizing the drivers.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III 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
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor prac-
tices, it will be recommended that it cease and desist therefrom, and that it take
certain affirmative action designed to effectuate the policies of the Act.
The undersigned has.found that the respondent discriminated in regard to the
hire and tenure of employment of D. D. Thomas. The undersigned will recom-
mend therefore that the respondent offer immediate and full reinstatement to
Thomas to his former or substantially equivalent position, without prejudice to
28 Callaway testified, in effect, that he decided to discharge Thomas, one of respondent's
oldest employees , in order to set an example for new drivers and thereby discourage
speeding
24 Cheatham's testimony in this connection is supported by Thomas' version of the facts.
ENGLISH FREIGHT COMPANY 385
his seniority or other rights and privileges, and that the respondent make him
whole for any loss of pay he has suffered by reason of the respondent's discrimina-
tion against him, by payment to him of a sum of money equal to that which he
normally would have earned as wages from the date of such discrimination to
the date of the offer of reinstatement, less his net earnings, 5 during said period.
As stated above, the date of said discrimination was July 6, 1944.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF Lxw
1 International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Local 745, AFL, 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 D. D.
Thomas and thereby discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 745, AFL,
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 respondent has engaged in
and is engaging in unfair labor practices, within the meaning of Section 8 (1) of
the Act. '
4. The aforesaid unfair labor practices a're unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, English Freight Company, its officers,
agents, successors , and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, Local 745, AFL, or any other
labor organization of its employees, by discharging or refusing to reinstate any
of its employees, or in any other manner discriminating in regard to their hire
and tenure of employment, or any term or condition of employment;
(b) In any other manner interfering with, restraining,. or coercing its em-
ployees in the exercise of their rights 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 purpose of collective bar-
gaining or other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the Act.
(a) Offer to D. D. Thomas immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other
rights or privileges ;
15 BY "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent , which would not have been incurred but for the re-
spondent ' s discrimination against him and the consequent necessity of his seeking employ-
ment elsewhere . See Matter of Crossett Lumber Company , 8 N. L. R B 440. Monies
received for work performed upon Federal , State, county , municipal , or other work -relief
projects shall be considered as earnings . See Republic Steel Corporation v N. L. R. B,
311 U S. 7.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make whole D. D. Thomas for any loss of pay he had suffered by reason of
the respondent's discrimination against him, by payment to him of a sum of
money equal to that which he normally would have earned as wages from the
date of the discrimination to the date of the respondent's offer of reinstatement,
less his net earnings during said period ;
(c) Immediately post in conspicuous places in all of the places of business
wherein its employees are engaged, and maintain for a period of at least sixty
(60) consecutive clays from the date of posting, notices to its employees stating:
(1) that the respondent will not engage in the conduct from which it is recom-
mended that it cease and desist in paragraph 1 (a) and (b) of these recommenda-
tions; (2) that the respondent will take the affirmative action set forth in para-
graph 2 (a) and (b) of these recommendations; and (3) that the respondent's
employees are free to become or remain members of International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 745, AFL,
or any other labor organization and that the respondent will not discriminate
against any employee because of membership or activities in this organization;
(d) File with the Regional Director for the Sixteenth Region on or before ten
(10) days from the receipt of this Intermediate Report a report in writing setting
forth in detail the manner and form in which the respondent has complied with
the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notify said regional Director
in writing that it will comply with-the foregoing Recommendations, the National
Labor Relations Board issue an Order requiring the respondent to take the action
aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3-as amended, effective November 26,
1943, any party may within fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II of
said Rules and Regulations, file with the Board, Rochambeau Building, Wash-
ington, D. C., an original and four copies of a statement in writting setting forth
such exceptions to the Intermediate Report or to any other part of the record or
proceeding (including rulings upon all motions or objections) as he relied upon,
together with the original and four copies of a brief in support thereof. As fur-
ther provided in said Section 33, should any party desire permission to argue
orally before the Board, request therefor must be made in writing to the Board
within ten (10) days from the date of an order transferring the case to the Board.
JOHN H. FaADIE,
Trial Examiner.
Dated November 23, 1944.