Greater Houston Cartage Co.

National Labor Relations Board - Board Decisions

Aug 25, 1971

192 N.L.R.B. 1034 (N.L.R.B. 1971)

1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Greater Houston Cartage Company and General Driv-
ers, Warehousemen and Helpers Local Union No.
968, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America
Greater Houston Cartage Company and Lonnie L.
Tyson, Cases 23-CA-3776 and 23-CA-3866
August 25, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND
KENNEDY
On June 9, 1971, Trial Examiner Owsley Vose
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in- certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He also found
that Respondent had not engaged in certain other
unfair labor practices 'and recommended that the
allegations pertaining thereto be dismissed. Thereaf-
ter, the General Counsel filed exceptions to ' the
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 proceeding to a three-
member`panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby' affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this proceeding, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to the Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the Respondent, Greater Houston Cartage
Company, Houston, Texas, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
OwsLEY VosE, Trial Examiner: Case 23-CA-3776 was
heard at Houston, Texas, on February 16 and 17, 1971,
pursuant to a charge filed on October 9, 1970, and a
complaint issued on December 11, 1970. The complaint, as
amended at the trial, alleged that the Respondent had
discriminatorily discharged three empl yees during a4-day
period at the end of August 1970, in olation of Section
8(a)(3) and (1) of the Act, and that 'the Respondent had
engaged in various acts of interference, restraint, and
coercion in violation of Section 8(a)(1) of the Act.- The
charge in Case 23-CA-3866 was filed-by Lonnie L. Tyson
on January 25, 1971, but no . , complaint was issued until
February 23, 1971, after the trial- in Case 23-CA-3776. The
second case was consolidated, with the first and the
reopened trial was held at Houston on March_18,1971. The
second case involves allegations that the Respondent had
discriminatorily discharged Lonnie L. Tyson on' January
19, 1971, in violation of Section 8(aX3) and (1) of the Act.
Upon the entire record,'my observation of the witnesses,
and after considering 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, a Texas corporation, having its
principal office and place of business at Houston, Texas, is
engaged in trucking' operations, using trucks leased from
the McNair Truck Leasing Company , a separate corpora-
tion, largely owned by Foster McNair, the vice president
and general manager of the Respondent. Approximately 95
percent of the Respondent' s business hauling Houston
Chronicle newspapers pursuant to a contract with the
Houston Chronicle Publishing Company(herein called the
Chronicle) which is terminable by either party upon 30
days' notice. This contract covers the hauling of newspa-
pers to distributors located within Houston (city runs) and
to outlying areas (state runs). During the year preceding
the issuance of the complaint m the first case, the
Chronicle paid the Respondent more than $50,000 for the
hauling of its newspapers.
The Chronicle is engaged in the business of publishing a
daily newspaper, which comes out evenings during
weekdays, publishes articles which are syndicated through
the Associated Press and the United Press International,
and has a gross annual volume of revenue exceeding
$200,000.1
Upon the foregoing facts which are undisputed I find
that the Respondent is engaged in operations affecting
commerce within the meaning of Section 2(6) and (7) of
the Act and that it will effectuate the policies of the Act to
assert jurisdiction over such operations.
I The Board has repeatedly asserted jurisdiction over the operations of
the Chronicle in the past.
192 NLRB No. 146
GREATER HOUSTON CARTAGE CO. 1035
II. THE LABOR ORGANIZATION INVOLVED
General Drivers, Warehousemen and Helpers Local
Union No. 968, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen &. Helpers of
America (herein called the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Discriminatory Discharges and Acts of
Interference , Restraint, and Coercion in Violation
of ,Section 8(a)(3) and (1) of the Act
1. The organization of the' Union; the
Respondent's reaction thereto
The Respondent's drivers work only 5 to 6 hours a day.
As of the time of the events with which we are here
concerned, the - Respondent's drivers were being paid $2
per hour. Some .of the Respondent's drivers had full-time
jobs elsewhere . One such was Willie Jones, who had a full-
time job working- for Kroger's on the late shift. Kroger's
drivers were represented by the Union and Jones was one
of the Union's stewards among the Kroger drivers.
In June 1970 Willie Jones commenced discussing with
his fellow drivers the desirability of having union repre-
sentation for the Respondent's employees. In July Jones
obtained some union cards from Arthur Parker, the
president and business agent of the Union, and started
distributing them among his fellow drivers. Jones was
assisted in his organizational efforts by Raymond Reeves,
a business representative of the Union, Some 20 to 25
employees returned their cards to Jones during the month
of August.
Among- those whom Jones signed up were Mack Jones,
who signed a card in Willie Jones' presence at the old
loading dock at the Chronicle building on August 13, and
John Howard who signed a card in the cab of his truck
inside the Chronicle building on August 20. When Mack
Jones gave his signed card to Willie Jones-on August 13,
William Rowland, the Respondent's' operations manager,
was standing about 10 feet away ' and facing in their
direction .2 By August31, all three men, Willie Jones, Mack
Jones, and John Howard, had been discharged by the
Respondent under circumstances discussed in greater
detail below.
Operations Manager Rowland admitted that after he
heard that organizing activities were, in progress he made
inquiries among his employees to find out, how many of
them were interested in the Union and why they felt that
they needed a union . The testimony, however, is sharply
conflicting as to the date when Rowland first heard about
the organizing activity.- Rowland testified that he was
2 Rowland denied seeing Jones sign ; a union card on this occasion.
3 Rowland admitted that this portion of the discussion took place, but
placed it as having occurred on September.
4 Rowland denied Polk's testimony above quoted. However, later on in
his testimony Rowland admitted , as found below, telling numerous
employees that the Respondent did not own the trucks which it used, and
that if the Respondent lost its contract with the Chronicle the sign on the
truck could be changed and the trucks could be leased to other customers of
McNair - Truck Leasing. There is enough similarity between Rowland's
admitted comments to numerous employees and Polk 's testimony concern-
"positive" that he first received such information on the
evening of August 28, but that he,was not informed at this
time of A he identity of the employees interested, in the
Union. The testimony of several employees, if credited,
indicates that Rowland received information about the
organizing campaign among the Respondent's drivers at an
earlier date. For reasons more fully' stated below, I
conclude that the employees' testimony is entitled to credit
in preference to Rowland's on this point.
Employees Johnny -Folk and Willie Jones placed Row-
land's questioning of them about the Union as early as
August 10, although they were not sure 'about the exact
date. According to Polk, Rowland summoned him to his
office and, showing him a union card, asked him "had [he]
seen one of these before." When Polk said no, Rowland
said that he had found it in Polk's truck. Polk stated that he
did not know how the card got there.3 Rowland then said,
as Polk testified, "Don't you know if they want to get this
union here that I could lose my job." Polk testified that
Rowland continued as follows:
He said if the union were to get in the Greater
Houston Cartage Company, Mr. Foster McNair would
have to change the sign on the trucks and lease them
out, and that would mean I didn't have any further job.4
Willie Jones testified that Rowland called him into his
office 2 or 3 weeks' before he was discharged (Jones, was
discharged on August 31) and asked him if he were a
member of the Union. Jones told him that he was.
Rowland's only comment was "Oh." According to Jones,
Rowland again called Jones into his office between August
19 and 24 and, holding up a blank union card in front of
Jones, asked, "What is this? ... How did it get here?"
Jones said he did not know. Rowland continued, "It got
here some kind of way." Jones turned and left .5
John Howard testified that on Monday, August 24,
Rowland asked to see him in the office before he left for
the Chroncile Building. Rowland opened the conversation,
according to Howard, by asking "what' [Howard knew
about the union:' Howard replied that he "didn't know
anything." Rowland then went on to say that "if the union
did come in they won't need any part-time help." Rowland
mentioned the name of a friend of Howard's, Allen Smith,
and said that "he wouldn't have a job either." Howard's
testimony makes it evident that he regarded the jobs held
by him and Smith, involving 5 to 6 hours' work a day
during high school vacation periods, as being a part-time
job. At this point Rowland showed Howard a union card.
Howard admitted that he had signed such a card and
added that if he "had known there wouldn't be any part-
time help, [he] wouldn't-[have] sign[ed] one." Rowland
then asked "who had these cards" and Howard told him,
that Willie Jones had them. Rowland, so Howard testified,
mg Rowland's statements to him to,persuade me that Rowland didmake
comments to Polk of the nature attributed, to him by Polk, and that if
Rowland did not expressly state that Polk would lose his job if the Union
won an election, he deliberately couched his remarks in terms which implied
that such an eventuality could reasonably be anticipated.
5 Although Rowland denied that the above, incident occurred, I
conclude , in view of the mutually corroborative testimony of Polk , Howard,,
and Henderson concerning Rowland's questioning of them about union
cards and Rowland's admission that he made inquiries of employees about
their union interest , that Jones' testimony is . entitled to credit.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cautioned Howard as he left, "Don't repeat anything that
has been said in this conversation. "6
Upon considering the conflicting testimony set forth
above' about the date of Rowlands conversations, with Polk,
Howard, 'and Jones, I conclude that Rowland acquired
knowledge that an` organizing campaign was in progress
and of the fact that, Willie Jones and Howard were
supporters of the Union at least by Monday, August 24.
Howard had a clear , recollection that his conversation
occurred on a, Monday, about a week before his discharge
on August 30, which would make it August 24. When
Rowland was first asked when his conversation with
Howard took place, he answered, "I don't recall.", When
counsel for the General Counsel, in an effort to obtain a
more 'precise answer, asked, "are we talking about a couple
of months, 'a couple of days, or a couple of weeks?"
Rowland replied, "It could be only a day ... I' believe it
was on a Saturday morning." I find Howard's `definite,
response much more convincing that Rowland's imprecise
answer . Under all the circumstances, and in view of the
instances ' discussed below in which I find Rowland's
testimony to, be unreliable, I reject Rowland's testimony
concerning the date of his conversation with Howard, and
find in accordance with Howard's testimony that, this
conversation occurred on August 24, before the first of the
discharges, here involved.
According to Johnny Polk, General Manager McNair
also had a conversation with him about the Union. He
testified that after work, on August 20 McNair told him, in
the presence of George Seals and Robert Garner, as
follows: -
A. Well, Mr. Foster McNair said he could change
the signs on the trucks and if the Teamsters union are
trying to get in, he didn't have to sign' no contract or
nothin' and they couldn't make him sign it.
Q. , Did anybody in this group, yourself, Mr.'Seals
or Mr. Garner, have anything to say regarding that?
A. No, we asked him if we would, still have our jobs
if he leased, the trucks out.
Q. Who asked him that?
A. George Seals.
Q. Did Mr. McNair have any reply?
A. He said no.7
6 Rowland testified, before hearmg , the testimony above summarized that
he had discussed union activities with Howard before Howard's discharge
on'Sunday, August 30, and that he believed that the conversation took place
on Saturday morning , August 29. Rowland further testified that he had
found some union literature, including cards in the trucks, that he had
shown Howard a card, that he believed that he had asked'Howard "if he
knew anything about a union card," that ' Howard had stated that he had
seen the card , and that he had asked Howard whether he "was familiar with
the workings of a union" and that Howard had said no. Rowland admitted
that he' could not recall all of this conversation which continued"for "some
length 'of time." After Howard gave the testimony set forth in the text
above, " Rowland was recalled and questioned about stating to Howard that
there would be no, part-time employees if the Union came in.' Rowland,
however, could not`remember'whether he had made such a statement.
Rowland did remember , however, telling Howard that as far as he knew a
union would not allow employees to hold down two jobs. I credit Howard's
testimony.'
9' McNair was not questioned about this specific incident . McNair,
however, denied telling any employee that he would never sign a contract
2. The discharges in the August 27-31 period
a. The discharge of f Mack Jones on August 27
Mack Jones was hired by the Respondent as a driver in
March 1969 and was discharged on August 27, 1970. The
only evidence of complaints concerning-Jones' work or his
conduct as an employee is the following. On a Saturday
night within'the 30=day period preceding Jones' discharge,
Jones was warned about carrying passengers in his truck,
contrary to the Respondent's no-riders policy.: According
to Jones' testimony, he was warned twice on the same
evening about carrying passengers . In one of these
instances Rowland, as he admitted, acquiesced in Jones'
dropping off two children (one of them was related to
Jones) near their homes, since they had no other way of
getting home that night., A week or two before Jones'
discharge Rowland received a complaint, apparently from
a woman who was frightened, by the way Jones= was
driving, and Rowland reported this, complaint to Jones.$
As found above, Jones ,signed a union card- on August 13
at the old loading dock at the Chronicle building. At the
time Jones did - so, Rowland was - standing about 10 feet
away and 'facing in Jones' direction. , -
After work, on Thursday, August, 27, payday, Jones,
parked his truck, punched out his timecard; and walked
over, to Rowland and asked for, his paycheck. Jones
testified that Rowland asked him "to wait A minute he
wanted to talk to" Jones. About 10 or 15 minutes later
Jones walked back to Rowland and said, "Are you going to
tell me what this is all about?" Rowland replied, Jones'
testimony continues, "This is going to be your final check."
The testimony of Jones and Rowland concerning the
explanation which Rowland then gave Jones for his
discharge is wholly irreconcilable. Jones' testimony is that
Rowland told him "he had a serious report about me the
week, before, I was [tailgating]9 -a pregnant woman;'
Earlier in the case, before hearing Jones'-,testimony
Rowland had testified as follows concerning the reason for
Jones' discharge:
Q. What did you tell him?
A. That he was caught with two women in the
truck and he was terminated because of having-He
had been talked to before about having unauthorized
passengers in the vehicle.
Q. Mr. Jones have anything to say?
with the Union or mentioning anything about leasing the, trucks out.
McNair also testified that he did not become aware of the union organizing
drive until August 31. For reasons stated below in connection with a
somewhat similar conversation which McNair later had with Tyson, I do
not believe , McNair's general denials and credit Polk's testimony above
quoted. It may be noted that McNair's remarks on this , occasion about
changing the signs on the trucks ffollow, the same pattern as the remarks
which Rowland in effect admitted making to numerous " employees.
8 Rowland in his testimony referred to Jones "running some people off
the' road." Jones in testifying about the circumstances - of his discharge
mentioned Rowland's `explanation' that Jones"bad -been "tailgating" a
"pregnant woman."
9 Although the transcript of testimony contains the word "carrying"
instead "tailgating," I believe 'this was an error in' transcription in view of
the entire record- in the case and particularly counsel's question and the
witness' answer' given almost immediately thereafter, ' as " 'follows;
Q.' Did Mr. Rowland say anything else as to the reason why he
was' firing you except for this tailgating that was reported.
A. No, sir.
GREATER HOUSTON CARTAGE CO.
A. I don't recall. -I think he asked to talk about it. I
told him at that time- there was no reason to discuss it,
he had been caught carrying unauthorized people in the
vehicles before.
In view of my very serious doubts about Rowland's
reliability based on his testimony in connection with
Howard's discharge discussed below, I credit Mack Jones'
version of the discharge conversation. It may be noted that
although Rowland was, called to the stand by the
Respondent after ,Jones had testified and the conflict
between the two versions had become apparent, Rowland
was not questioned about Jones'-testimony concerning the
explanation given him , by Rowland at the time of his
discharge.
When Mack Jones was called to the stand he denied that
Rowland, had said anything to him at, the time of his
discharge about two women being in his truck and that he
did not in fact have any other persons riding with him in
the truck on the day of his discharge.
The record is extraordinarily vague concerning the
actual circumstances of the incident of carrying two
women in his truck. It is evident-from Rowland's testimony
that he did' not witness the incident for he testified that he
saw Jones but "one' time" with "unauthorized persons in
his truck" and that this occurred "within the previous
thirty-day'period." Ffom'this I infer that this was not the
incident which allegedly precipitated Jones' discharge, but
was the `earlier incident about which both Jones and
Rowland testified ' in ' which Rowland acquiesced in Jones''
dropping off two children on his run. General Manager
McNair 'testified that he believed-that he had caught Jones
with passengers in his truck, once 4 or 5 months earlier
when he "pulled" Jones' brother out of the truck at the
loading dock,. and also on one other occasion before that.
The, Respondent adduced no evidence as to the date on
which Jones was allegedly caught with two women in his
truck, who witnessed-the incident, how it was brought to,
the Respondent's" attention, and what the surrounding
circumstmces 'were; - -
b. The4isrharge _of John Howard on August 30
Howard was first hired by the Respondent in 1968 when
he was 17 years old. After assisting in loading trucks
weekends on -and off for about a year, Howard was
assigned to driving trucks in October 1969. Howard
continued to work weekends during the school year and
during the summer Howard worked the Respondent's full
schedule (5 to"6 hours a day).
As found above, Howard'was one of those questioned by
Rowland-concerning the Union, and who was handling the
union cards. ,In the course of the conversation Rowland
warned -that if the Union came in part-time employees,
such as Howard and his friend, Smith, would not have a
job.
Late Saturday _ night, August 29 and early Sunday
morningAugust,30, Howard dropped off the papers on his
Galveston run. When Howard arrived, back at the
Respondent's yard at 3:30 a.m., Rowland asked him if he
wanted to work overtime on a city run. Howard declined,
saying that he' had been up all night and was, tired.
Two or three minutes later Rowland called Howard to
1037
one side and told him, as Howard testified, that, he had
"received a letter from the insurance company stating that
he had a driver under 21 working for them" namely,
Howard, and that consequently the Respondent could not
"use, [Howard] any more." On the following Monday
afternoon, August 31, as Howard further testified, he went
to the loading dock of the Chronicle and the following
conversation with Rowland ensued:
I asked him the reason I was fired: I didn't think it
was because of the insurance, but because of the union.
He said it wasn't the union,
And I said, "Well why wasn't Allen Smith fired? He
is under 21 too and is still driving."
He said, well, they didn't send his name to him in the
letter.
Rowland's versions of the two conversations with
Howard differ only in minor respects from Howard's, which
I have credited. Rowland gave further testimony which
confirms Howard's testimony concerning the substance of
Rowland's conversation with him at the time of his
discharge. Thus Rowland testified that General Manager
McNair received a notice from the Respondent's insurance
carrier before Howard's discharge stating that Howard was
no longer insurable, and that McNair passed the notice
along to him.
While I have credited Howard's testimony concerning
Rowland's explanation to him of the reason for his
discharge, as indicated above, I am far from satisfied with
the truth, of Rowland's explanation that the Respondent
had received a letter from its insurance carrier notifying it
that Howard was no longer insurable. In the first place,
Rowland had , known for several months that Howard was
considerably younger than the 25 years which, Respon-
dent's insurance carrier set as the minimum age for its
drivers. In May, and again in June, Rowland had
canvas" its drivers and obtained from i them information
contained on their drivers licenses, including their birth
dates. Howard was only 18 years old in May and June.
(Howard's birth date was October 21, 1951.) But Rowland'
took no action however, until August, after he became
aware of the' organizing drive among the drivers 'and
Howard's interest in it.
Secondly, the Respondent was unable to produce any,
corroboration for Rowland's testimony that the Respon-
dent received a notice from its insurance carrier to the
effect that Howard was no longer insurable. However, for
the reasons stated below, the notice must have been
available if it in fact existed. The Respondent's insurance
policy is terminable upon 10 days' notice from the carrier.
The practice of the carrier, although not provided for in the
policy, when it desired to exclude any driver from coverage
for any reason, including, for example, underage or
unsatisfactory driving record, was to send its Form 119,
"Exclusion of- Named Driver," to the Respondent for
signature by it. Form 119 was designed as an endorsement
to the Respondent's insurance policy and provided, when
received back signed by the Respondent, that• the carrier
was not responsible for claims arising out of the operation
of vehicles driven by the driver or drivers named in the
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
form. When the Respondent received a Form 119 from its
insurance 'carrier; it necessarily had to sign it and return it
to the carrier within 10 days or risk `the, termination of its
policy and the loss of coverage on all of its drivers. And of
course-the carrier had to receive back from the Respondent
the signed Form 119- to be relieved of - liablity for -the
actions of the drivers named on the form. Despite these
considerations which militate so strongly in favor of the
Respondent` being-able to'produce the Form 119 naming
Howard, `if it infact existed, the Respondent was unable to
produce it or ,a copy thereof at the trial. Nor was the agent
for the Respondent's insurance carrier, who testified with
the Respondent's insurance policy before him, able to find
the endorsement in question or to recall any discussions
with the Respondent's officials about a Form 119 naming
Howard.
Under all the circumstances I conclude that Rowland
was not telling the truth when he testified that the
Respondent had received a notice from its insurance
carrier naming Howard, that no such notice was in fact
received by the Respondent, and that this explanation was
fabricated by Rowland to mask his real reason for
discharging Howard, which is discussed below.
c. The discharge of Willie Jones on August 31
Jones was hired'in November 1968 and worked continu-
ously for the Respondent until his discharge on August 31,
1970. At the time' of his discharge Jones had the Baytown
run.
As found above, Willie Jones was the instigator of the
union movement among the` Respondent's drivers andwas
largely responsible for passing out union cards and turning
over the signed cards to the Union. Before Jones'
discharge,- Rowland called Jones into his office ' and
questioned him about his union membership and 'about
finding union cards in the trucks. -About this same time
John Howard, upon being questioned by Rowland,
revealed that Willie Jones had the cards. '
Under the Respondent's arrangement with the Chronicle
certain drivers were requested to leave their, trucks parked
outside the Chronicle building on Tuesdays and Fridays
instead of returning them to the Respondent's yard, as they
did on the other days. Jones was one of the drivers who
were required to do this. The Chronicle building isrlocated
in a downtown area of Houston and' parking spaces
adjacent to the building are very difficult to' find: When
Jones-returned from his run on Tuesday, August 25, he
parked his truck outside of the Chronicle's freight elevator,
blocking' the entrance thereto. Following instructions
10'For the most part there is no dispute about the facts recited above.
However, there is a dispute,-about the exact sequence, of, events and about
whether Jones was short a third time on, Thursday,,August 27, as. Rowland
testified. Where there is a conflict I have credited Jones' version for the
following reasons. Jones" testimony as awoole, particularly his testimony
that Rowland on the occasion of his discharge charged him with'being short
on only two occasions, indicates that there were only two such occasions.
Furthermore, as appears more fully below , a memorandum from Circula-
tion Manager Pope dated September 1, 1970, several days after the
occasions in 'question , ' refers to'Jones ` having been' short on ' only' two
occasions . For' these reasons; and in view of my'doubts about Rowland's
credibility, I find that Jones was short in his dehveraes of newspapers, on two
days,only. - . "
11 The testimony quoted above is Jones'. Rowland denied telling Jones
which he- had only recently received; Jones locked his
truck. If Jones' testimony is to be believed, Jones , pursuant
to his instructions, locked his truck and gave the key to
Fred Swist, the Chronicle's dock foremen. However, from
reports received 'from the Chronicle by Rowland and
General Manager McNair it appears that Circulation
Manager 'Pope and Dock Foreman, Swist found Jones"
truck parked and locked in front of the freight ' elevator,
blocking its use. The two Chronicle supervisors , according`
to a written report later received by Rowland, had'to "hot
wire" the truck to move it ' It appearing unlikely that
Circulation Manager Pope who sent the written report to
Rowland would make up this incident out of the whole
cloth, I conclude that Jones was in error when he "testified
that he gave the truck key to Dock Foreman Swist. While
this,incident occurred on Tuesday and was immediately
brought to Rowland's attention _ by Foreman Swist,
Rowland, so far as the record'shows, did not mention the,
incident to Jones until the following Monday , when he
discharged Jones.
On Tuesday, August, 25, Jones was short a few papers
(less than a bundle) in a delivery to a distributor on his
Baytown run. The distributor complained to the Chronicle,
but the shortage was not sufficient; to require a special trip
to make up the shortage ., The following day, Jones was
short approximately a bundle and a half and this time
Circulation Manager Pope immediately complained to
Rowland about the shortage . Rowland learned on this
occasion of Jones' shortage on the day before. At this time
Rowland mentioned to Jones the complaints which he had
received from the Chronicle, about his shortages and
sought to impress upon him his,responsibility for the count
of the papers on his truck.'Jones acknowledged that it was
his responsibility to check the count before leaving the
loading dock. Rowland cautioned Jones on this occasion to
try to do better in the futurei0'_
When Jones reported for work on Monday morning,
August 31, Rowland, after accusing Jones of -"starting this
union ... disturbance," left for General Manager
McNair's office to pick up Jones' check. When Rowland
returned he gave Jones his check and stated as follows:
I'm sorry we have to [part] this way- ..-. You were a
bundle short two days in a row in Baytown, and` also
you locked your truck' up in a tow-away-zone. The
Chronicle has -,us under contract and they tell us what
to do."
Both Rowland and McNair gave testimony concerning
conversations with either Circulation Manager,Pope or
Foreman Swist of the Chronicle before Jones ' discharge
that he was discharged for starting a union disturbance . Rowland also
testified that he had learned Friday morning that Jones had been short in
his deliveries again on Thursday, August 27, and that on the occasion of his
discharge he told Jones:
that he pa ked his truck next to a delivery street elevator and we had'to
break into the truck' to move it so the Chronicle could receive a delivery
of a shipment of ink and also ' that he had' come up ' short on his run
three days 'in a row, and at the request of the Chronicle I was going to
have to cut'him loose.
I have found Rowland to be an unreliable witness in various respects and
accordingly credit Jones' testimony quoted in the, text above . As found
above, Jones was short in his deliveries that week only on Tuesday , April 25,
and Wednesday, April 26.
GREATER HOUSTON CARTAGE CO. 1039
concerning complaints about Jones. However, McNair was
vague as to who had called. When pressed to be more
precise as to who had called, McNair answered, "Well,
Chris Pope . It could have been Freddy Swist or it could
have been anybody in charge of the loading dock." Upon
further questioning McNair -stated, "Well, first it was-Chris
Pope.... And the second time I believe it was Freddy
Swist but I am not sure." McNair further testified that in
the second call it was suggested that the Respondent make
other arrangements for a driver for the Baytown run.
Rowland testified , as- indicated above, that Pope com-
plained to him about Jones ' shortages on Wednesday
afternoon , August 26. Rowland further testified that on
Saturday morning, August 29 , he had a, further conversa-
tion with Circulation Manager Pope about Jones. When
asked "what was the subject of that conversation,"
Rowland replied as follows:
It was about a truck that had ... been parked on the
street and was locked , and it was parked by a street
elevator for the Chronicle .. .
Upon further questioning Rowland stated as, follows:
He made a summary of the previous conversation
and brought up the. matter of the parked truck
difficulty and inconvenience it caused the Chronicle,
and they were highly upset and wanted to know if I
couldn 't replace Willie Jones because of his failure to
perform his duties.
One other thing that was discussed , and this was a
policy that I had with Chris Pope-everything
that things of this nature, I received written instruc-
tions on. He was in some type of typing pool , and his
typist was about two or three days late-
Well, he would give me a written followup when his
secretary returned to work the following week.
McNair testified that on September 2, which was 2 days
after Jones' discharge, he received the following memoran-
dum from Chris Pope:
CITY CIRCULATION DEPARTMENT
To: Bill Rowland : Date : 9-1-70
RE: Driver Willie Jones
Last week this driver was short when he arrived in
Baytown both Wednesday and Thursday. Also on
Tuesday his truck was parked and locked on Texas
Ave. blocking our freight elevator. Fred Swist and
myself had to hot wire the truck to get it moved.
It seems to me that we could find someone a little
more conscientious to replace Willie Jones.
CHRIS POPE
Taking into consideration all of the circumstances of the
case, I cannot credit the testimony of Rowland and
McNair which implies that the requests of the Chronicle
for the replacement of Jones were a substantial factor in
is Ruse McNair was not called as a witness . Rowland denied that Ruse
McNair made such a statement on this occasion . However, in view of my
doubts about Rowland's credibility and of McNau's failure to testify I
credit Reeves' testimony. Reeves impressed me as a sincere witness.
13 Tyson placed this conversation in August . However, as appears below,
Tyson referred in his testimony to the conversation as occurring after a
the Respondent's decision to discharge him. My reasons
for reaching this conclusion are set forth in greater detail
below in the section headed "The Respondent's conten-
tions ; conclusions."
3. The Respondent's conduct in the preelection
period
Union Business Representative Raymond Reeves went
to the Respondent's yard during, the first week in
September and commenced passing out leaflets and cards
to employees at the gate. Reeves also engaged in
organizing activities at the Chronicle building. Rowland
and Ruse McNair, the son of Foster McNair, the Respon-
dent's general manager, went out and spoke to Reeves on
the occasion of his visit to the gate. Ruse McNair is
employed by McNair Truck Leasing, the owner of the
trucks which the Respondent uses in its operation, and is
not an employee of the Respondent. Rowland objected to
Reeves allegedly interfering with employees as they left in
their trucks and McNair said that he had already called the
police and that Reeves should leave. Reeves insisted that
he had a right to remain. McNair also stated that
. . the company would go out of business because
there was no money to give these people a raise, and if
the union came in, the company would have to go out
of business, just take their signs off the trucks and make
other arrangements.12
William Henderson was one of -the employees who
accepted the literature being distributed by Reeves the
morning Reeves appeared at the gate. A few minutes later
Rowland asked Henderson whether he had received one of
the cards. Henderson said no. According to Henderson,
Rowland then went on to say that if"they had an election
out there ... they would probably have to put up a picket
line" and if so, the Respondent "would keep on operating
and change the name on the trucks ... and I would lose
my job." Rowland, after denying telling Henderson thathe
would probably lose his job, explained as follows: "This is
maybe where Henderson got crossed up. I told Henderson
a union would not let one union man hold down two union
jobs." I conclude for the reasons'stated in connection with
Rowland's statement to Polk about changing the name on
the trucks that Rowland did make remarks to- Henderson
on this occasion which were calculated - to, leave the
impression that he would lose his job if the Union won an
election.
On September 4 or 5 , after Business Representative
Reeves had passed out leaflets at the gate to the yard and
the loading dock at the Chronicle, the Respondent posted a
bulletin on its bulletin board regarding the current union
activity. After this bulletin was posted Rowland had a
conversation with Lonnie Tyson, a'driver on another of the
Respondent's state runs .13 Tyson testified that as- he was
punching his timecard out on this occasion Rowland asked
him if he had seen the bulletin on the board. When Tyson
"Company bulletin" had been posted on the bulletin board. As indicated
above, this notice was not posted by the Respondent until after Reeves
passed out literature at the plant gate in the first part of September.
Rowland testified concerning a conversation with Lonnie Tyson in the latter
part of September. Under all the circumstances, I conclude that this
conversation took place in the latter part of September.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said yes, Rowland -went on to say, according to Tyson,
"You know what will happen if the Union gets in here?"
To quote Tyson, Rowland continued as follows:
He said if the union comes in, Foster McNair may
have to take his signs off the trucks ... and hire new
employees' for the old employees . . he said if the
union comes in and the company and the union
couldn't agree on what they asked for, the
company-the company would he said the company
couldn't afford to -pay what they are-what the union
was asking for. He said the company couldn't pay any
more than the Chronicle paid him.
After telling Tyson, "You don't have to sign the card,"
Rowland asked 'him, so Tyson testified, if he knew what
would happen to his job if the Union came in. When Tyson
hesitated Rowland stated that Tyson "wouldn't have one."
While Rowland at first denied making the statements
attributed to him by Tyson, he did admit telling Tyson
"that` Greater Houston Cartage Company did not own
those trucks even though their signs were on the trucks." I
discuss below Rowland's admissions concerning the
statements which he made to numerous employees about
the possibility of the Respondent losing its business with
the Chronicle and the changing of the signs on the trucks.
In view of 'these admissions I conclude that Rowland did
make remarks on the occasion of his conversation with
Tyson which were intended to convey the impression,
which Tyson definitely received, that the loss of his job was
a definite possibility if the Union came in.
After this conversation with Rowland, General Manager
McNair spoke to Tyson, about the Union as he was giving
him his paycheck. According to Tyson, McNair asked him
what he thought would happen if the Union came in.
When Tyson failed to respond, McNair remarked that if
the Union came in and he (McNair) could not agree to the
Union's proposals "he would take his signs off his trucks
and lease [to] someone else" and Tyson "wouldn't have a
job "14
On September 14 the Union filed with the Regional
Director a petition for certification as bargaining repre-
sentative of the Respondent's employees. On October 23
the Regional Director issued his decision and direction of
election. Thereafter the NLRB notice concerning the
election was posted on the Respondent's bulletin board.
The election was scheduled for November 19 and 21.
On October 29 and again on November 5 the Respon,
dent distributed letters to the employees along with their
paychecks. In the first letter the Respondent frankly stated
among other things, that it was "strongly against having
the Teamsters Union represent" the employees, asserted
that all that the Union was interested in was the employees'
dues, warned that unionization could result in loss of jobs
through replacement, during an economic strike, and urged
14 Tyson appeared to me to be confused in his use of negatives and as to
other aspects of English usage as well, and consequently his testimony at
times was difficult to comprehend. The above represents my conclusion as
to the purport of Tyson's testimony concerning this coniersation.
McNair was not questioned specifically, concerning this conversation
with Tyson, McNair denied having any conversation in which the leasing of
the trucks was mentioned and denied generally threatening to go out of
business if the Union won the election. According to McNair, in his
conversations with employees, he told them that if it was economically
that the employees reject, the Union in the election: In, the
second -letter the Respondent, after reiterating that, the
Union had only a selfish interest in the employees, again
warned of the -possibility of loss of jobs resulting from
excessive union demands which probably would cause the
Respondent to lose the business of the-Chronicle. The
letter concluded with an -urgent-,invitation to attend a
meeting before work on November 17. - -
At the meeting, on November, 17 approximately 18
employees attended; Rowland had the text -of a speech .in
his hand as he talked, but - departed from the text -in a
number of' instances to make extemporaneous remarks. In
his prepared` talk Rowland ' attacked the motives- of', the
Union- in attempting to organize the Respondent's employ-
ees, stressed the tenuous nature- of - the- Respondent's
relationship with the Chronicle and the danger that the
Respondent would lose the contract to -a competitor; and
again warned of the possibility of- loss -of jobs through
replacement during a strike which the Union would
probably call. In his extemporaneous remarks and also
during numerous conversation- with, individual drivers
during , this period (Rowland admitted to having such
conversations with between 20- and 25 drivers) Rowland
expanded on this, theme. The details concerning Rowland's
remarks- on these occasions are - set forth' below in the
section entitled "The Respondent's contentions; conclu-
sions."
The election was conducted by the NLRB at the
Respondent's yard on November 19 and 21. Out of 64
eligible voters, 40 employees voted-for the Union, 10 voted
against the Union, and 4 ballots were challenged. Thereaf-
ter the Respondent and the Union commenced bargaining
negotiations. No agreement had been, reached by the time
of the trial of these cases in February and March.
4. The discharge of Lonnie,Tyson
on January 19, 197 .
Tyson commenced working for the Respondent in
September 1969 and was one of the Respondent's senior
drivers. As found above, both Rowland and McNair had
conversations with Tyson in September 1970 about the
Union in which each threatened Tyson with the loss of his
job if the Union came in. Rowland admitted being aware
that Tyson was sympathetic to the Union's cause through
overhearing Tyson in conversations with his fellow
employees.
In August the Respondent prepared a document captain-
ing a set of instructions for drivers, which Rowland
testified merely constituted a codification of preexisting
requirements. The document was prepared with a place for
the drivers' signature acknowledging that he understood
the instructions. This document was given to the city
drivers , for signature in September, and later the state
unsound to meet the Union's demands, the Respondent would have to
reject them, and that he "was sure" that the Union would calla strike, -and
in that event the Respondent would have the right to replace the-strikers.
McNair impressed me as being overly eager to give testimony favoring the
Respondent's case, regardless of whether he had personal knowledge of the
facts as to which he was testifymg,'and'also as being prone toexaggerate. l
conclude, as in the case of Rowland's threats, that McNair deliberately
framed his comments to convey the idea that unionization of the employees
would result in the loss of jobs.
GREATER HOUSTON CARTAGE CO. 1041
drivers were asked to sign. In November Rowland gave
Tyson two copies of the document and asked Tyson to sign
one copy and return it to him. Rowland explained to
Tyson that his excuse whenever he made a mistake was
that he was not aware of what his instructions were and for
the reason, particularly, he wanted Tyson to sign. When
Tyson failed to return the document after 4 or 5 days,
Rowland became more insistent that Tyson sign the
document and return it. However, Tyson kept putting it
off. Finally, on December 3, Rowland threatened Tyson
with discharge if he continued to refuse to sign the
document containing the drivers''instructions. At this time
Tyson signed.
On December 18, the Chronicle reported to Rowland
that Tyson was short in his deliveries of newspapers on his
Freeport run. Rowland promptly discharged Tyson. At the
time Business Representative Reeves was informed about
Tyson's discharge' a meeting had already been scheduled
with Rowland to discuss a grievance concerning another
employee, Reuben Wright. Rowland agreed to discuss
Tyson's discharge at this meeting. In presenting Tyson's
case at this meeting Reeves stated that the distributor had
not been present at the time of delivery at the dropoff point
at which Tyson had' 'allegedly been short and urged that in
these circumstances it was unfair to assume that Tyson was
short, as persons unknown might have taken the papers
before the arrival of the distributor. Rowland pointed that
when the distributor is not present the driver is supposed to
note this fact on the invoice. (This was one of the
instructions on the document which Tyson signed on
December 3.) However, Rowland agreed to reinstate
Tyson immediately, with the understanding that if an
investigation disclosed the distributor in question had been
present at the time of delivery, his reinstatement would be
rescinded.
Tyson was another of the drivers who was required to
leave his truck at the Chronicle building on Tuesday and
Friday nights. As a convenience to these drivers Rowland
had arranged with them to park their cars on the parking
lot of the Old Houston Press on Tuesday and-Friday-
mornings , so that they would not have so far to go after
work on Tuesdays and Fridays to pick up their cars. (The
Press lot which is owned by the Chronicle, is 15 blocks
from the Chronicle building, whereas the Respondent's
yard, where the employees_ parked on the other mornings,
is '9-1/2 miles away.) Part of the arrangement was, that
Rowland would pick up Tyson and Hamilton another, of
the drivers, at 8:45 a.m. and drive them to the Respon-
dent's yard where their trucks were parked.
However, on December 29, Tyson, instead of reporting
to the Press lot, reported directly to the Respondent's yard
without notifying Rowland. Rowland and Hamilton
waited for about 20 minutes for Tyson to no avail.
The next day Rowland handed Tyson a note written in
longhand instructing him to report to the Press lot on
Tuesday and Friday mornings at 8:45, a.m. and asked
Tyson to sign it. Tyson refused, wadded up the note, and
threw it on the ground.
On Tuesday, January 19, 1971, Rowland was about a
half hour late arriving at the Press lot to pick up Tyson and
Hamilton . Rowland drove hurriedly back to the Respon-
dent's yard and dropped each of the men off at his truck.
Hamilton managed to leave first . Tyson had trouble
starting his truck, but it finally caught, and as it-did
Rowland instructed him, as Tyson testified, "to get on
downtown. ... You all are already late.". Rowland
returned to his office. Tyson then noticed that the rearview
mirror on his truck was loose and went over to the.shop to
get it tightened. Tyson-walked in the shop and asked one
of the mechanics to tighten his mirror for him- explaining
that he was late and had to get on downtown. The
mechanic said he would take care of it in a minute. Tyson
went in the office of the shop, and a few, minutes ^ later
came out and - again prodded the mechanic to fix- his
mirror. Having no success with this mechanic, Tyson asked
another to help him out, but the second mechanic, said he
could not do so unless he got instructions from the office.
After, about 10 minutes Rowland noticed that Tyson's
truck had still not left the yard and he hurried up to the
shop. The testimony concerning the confrontation which
occurred between Rowland and Tyson outside the shop, is
in conflict. The facts set forth below are based on my
reconciliation of the conflicting testimony. Rowland,, J
find, berated Tyson for standing around in the shop when
he was supposed to be downtown, and an argument-ensued
about whether the mirror was in such shape that the truck
was safe to drive without any adjustment. In the meantime
Rowland had procured a wrench and tightened the mirror.
When Rowland heatedly asserted that the Respondent had
other trucks and that Tyson should let Rowland, know
whenever there is a problem with a truck so that one of the
extra trucks could be used, Tyson became angry. Tyson
told Rowland, as the latter testified, "You can't tell me
what to do. You're not my boss." Rowland forcefully
stated that he was the boss and that Tyson had to take
orders from him, Tyson reiterated, as Rowland testified, "I
don't have to listen to you or do what you say Tyson, a
noticeably taller and huskier man than Rowland, ap-
proached Rowland as he was saying this. Rowland,
pointing his finger in Tyson's face, said according to
Tyson, "next time I tell you about going downtown- and
you refuse to go I am going to fire you." Climbing into- the
truck, Tyson stated, as he testified.
Well Rowland, don't stick your finger in my face
... because I am a -man just like, you.... You
wouldn't want me to stick my finger in your face. I
don't want you to stick yours in mine.
At this point Rowland angrily told Tyson, in, Tyson's
words, "get your ass out of that truck, you are fired."
On January 21 Reeves and Tyson met with Rowland to
discuss Tyson's discharge. After a lengthy discussion
Rowland stated that he would not reinstate Tyson under
any circumstances.
5. The Respondent's contentions; conclusions
'a. The discharges in the August 27-31 period
The Respondent contends that there is no evidence of
antiunion bias or prejudice on its part „ points to its alleged
voluntary hiring of union members as proof of this fact,
and asserts that there were valid business reasons for
discharging each of the employees who were terminated
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the August 27-31 period. Regarding the Respon-
dent's alleged hiring of, known union members, General
Manager McNair's testimony that 30-40 percent, of the
Respondent's. employees were known to be union members
when they were hired, upon which the Respondent relies,
in my opinion, is not only exaggerated but is misleading as
well. McNair himself later testified that but three to five of
its weekday employees were union men. The record as a
whole demonstrates that the Respondent was strongly
opposed to the representation of its employees by the
Union. It frankly said so in its first preelection letter to the
employees, Rowland reiterated this in his speech to the
employees, and Respondent's conduct throughout his case
leaves no doubt on this score. The Respondent's willing-
ness to hire known union members in a few instances, in
my view, only demonstrates the' seriousness of the
Respondent's problem in recruiting drivers during this
period. As Rowland testified, the Respondent was in a
"real critical" situation with respect to "obtaining drivers"
in June, July, and August. It was because of this situation
that Rowland recruited five or six drivers during this
period from the unionized East Texas Motor Freight
Company, presumably for weekend work. This action in
such-circumstances does not bespeak the broadmindedness
regarding unions which the Respondent professes to have.
Mack Jones: In the case of Jones the Respondent
contends that he was discharged on August 27 for carrying
two women in his truck and because of a complaint
received that he had driven recklessly and run a pregnant
woman off the road. The Respondent also asserts that in
any event Rowland was not aware of any organizing
activities among its drivers at the time of Jones' discharge.
I have found that the Respondent failed to adduce any
evidence of the actual circumstances of the incident of
carrying two women in his truck relied on ' by the
Respondent and that Rowland did not mention this
incident to Jones at the time of his discharge. As to Jones'
running' a pregnant woman off the road, this incident
occurred a week or two earlier and Rowland merely
reported the fact of receiving the complaint to Jones, as
Rowland testified. This incident was not mentioned to
Jones at the time of his discharge, as Rowland admitted.
With respect to the Respondent's claim that Rowland
was unaware of any organizing activities among the drivers
at the time of Jones' discharge, I have found that Rowland
was informed that organizing activities were in progress at
least by August 24. While this does not establish that
Rowland -was aware-of-Jones' participation-in the union
movement, in view of the Respondent's failure to substan-
tiate its claim that Jones had carried two women in its
truck which allegedly precipitated Jones' discharge, and its
failure to regard the alleged careless driving incident
seriously at the time it occurred, I can only conclude that
the explanation for Jones' discharge must he elsewhere.
Taking into consideration the timing of the discharge,
shortly after the inception of the organizing campaign, the
Respondent's obvious opposition to the representation of
its drivers by the Union, Rowland's opportunity, to observe
Mack Jones signing a union card for Willie Jones, and
Respondent's action 3 days later in discharging Howard a
known union sympathizer and giving a wholly false
explanation therefor, 1 conclude that, the Respondent must
have known that Mack Jones was sympathetic-to the union
movement and discharged him in an effort to nip the
incipient union activities in the bud. Mack Jones' dis-
charge, therefore, was violative- of Section 8(a)(3) and (1) of
the Act.
John Howard: Respondent's only, explanation, for the
discharge of Howard is that it received a notice from its
insurance carrier informing it that Howard was no longer
insurable. However, I have found that this explanation is
untrue and that no, such notice was received from its
insurance carrier. The Respondent was aware, from
Rowland's questioning of Howard on August, 24, that he
had signed a union card. As found above, Rowland
threatened Howard on August,24 that part-time employees
such as Howard would lose their jobs if,the Union came in.
For several months, from information furnished, , by
Howard regarding his, birth date, the Respondent had
known that Howard was only 18 years old. Yet the
Respondent did nothing about it until after learning of the
union campaign and about Howard''s interest in the union
movement. The Respondent's action in terminating this
admittedly, "good worker" 15 at this time and in giving an
explanation which proved to be totally , false, in my
opinion, clearly warrants the inference that Howard's
discharge was part of the Respondent's effort to quash the
union movement and was intended to pose an object lesson
as to the adverse consequences of supporting it. Howard's
discharge, therefore, violated Section 8(a)(3) and (1) of, the
Act.
Willie Jones: The Respondent gave various reasons for
Jones' discharge. In its brief the Respondent asserts that
(1) Jones left his truck parked, and locked in front of the
Chronicle's freight 'elevator on August 25, greatly incon-
veniencing the Chronicle, (2) Jones was short on his
deliveries of newspapers' 3 days in a row, 'August, 25, 26,
and 27, and (3) the Chronicle orally requested the
replacement of Jones on August 29 because of Jones'
conduct set forth in 1 and 2 above: At the trial Rowland
complained about Jones' failure on occasion to return his
truck to the Chronicle building on' Tuesdays and Fridays,
as he was supposed to do, and mentioned two`incidents of
apparently faulty driving on_ Jones' part which occurred in
the past, one involving running a vehicle off Hempstead
Highway and the other involving damage to the fender and
bumper of a Mercury. However, the Respondent did not
go into these complaints in any depth ,and I am convinced
that these complaints were not serious factors in, Jones'
discharge.
Regarding Jones' shortages in his deliveries, I have
found,' contrary to Rowland's -testimony, that Jones was
short on Tuesday and Wednesday of that week, but not on
Thursday. Rowland was aware of Jones' shortages on these
2 days on Wednesday afternoon but merely gave him a
mild admonition on Thursday morning to-be careful about
checking, his load in the future. As to- the parked truck
incident, although : this occurred on Tuesday and was
immediately brought to Rowland's attention, Rowland did
not mention it to Jones until the following Monday
15 This is General Manager McNair's ebaracterization of Howard.
GREATER HOUSTON, CARTAGE CO. 1043
morning when he discharged Jones. In view of the
foregoing it appears that Jones' conduct on these occasions
did not seriously disturb the Respondent at the time it
occurred. However, after the telephone conversations from
the Chronicle supervisors suggesting-that Jones be replaced
the Respondent apparently took a new look. The question
before me in connection with Jones' discharge is why did
the Respondent apparently change its mind and decide
that Jones' past conduct which it had not previously
regarded as being unduly serious suddenly became
intolerable.
Various factors must be taken into consideration in
resolving this -question. At the outset it should be noted
that the Respondent was under no obligation to follow the
Chronicle's suggestions regarding the employment of
drivers. The Respondent was the employer of the drivers
and only the Respondent was fully aware of the employ-
ment situation among drivers and of the possibility of
promptly replacing Jones. In view of the very serious
problem the Respondent was then having recruiting drivers
it might well have had doubts that it could replace Jones
with a driver who could perform as satisfactorily as Jones
did. Respondent's recruitment problem was rendered more
serious by virtue of the fact that it was offering only part-
time employment (5-6 hours a day) at $2 per hour.
Apart from the foregoing facts which raise-doubts in my
mind as to the sincerity of the Respondent's explanation
for Jones' discharge, it should be borne-in mind that Jones
was the instigator of the union movement among the
Respondent's employees and was the principal solicitor of
signatures on union cards. Also Rowland himself had
questioned Jones during the early part of the organizing
drive as to whether he was a union member and had
ascertained that he was.
Viewing the foregoing facts in light of the Respondent's
admitted opposition to the Union and its discharge of two
other union sympathizers within a 4-day period upon
flimsy pretexts or none at all, I conclude that the
Respondent seized upon the opportunity presented by the
Chronicle's suggestion that Jones be replaced to rid itself of
the known leader of the union movement. Willie Jones'
discharge,_therefore, also violated Section 8(a)(3) and (1) of
the Act.
b. The discharge of Lonnie Tyson on
January 19, 1971
The Respondent contends that an accumulation of
complaints against Tyson culminating in the incident of
January 19 was responsible for Tyson's discharge. It will be
recalled that on January 19 Tyson delayed in taking his
truck down to the Chronicle, and when Rowland remora.
strated with - him about this Tyson challenged Rowland's
authority to give him orders and, in Rowland's opinion,
threatened him. After further argument Rowland angrily
discharged Tyson. In addition to the problems with Tyson
and the complaints about his work mentioned in the
factual statement, Rowland testified about other problems
with Tyson also-that he argued 'with customers and
interfered with Chronicle dock personnel in the perform-
ance of their duties. After reviewing Tyson's record, I am
inclined to agree with Rowland that Tyson was a "constant
problem."
The General Counsel contends that Tyson was ' dis-
charged because he availed himself of union representation
in connection with his first discharge on December 18 and
succeeded in effecting his return to work. I am not
persuaded. Union representation was no longer a crucial
issue on December 18 or January 19, the dates on which
Tyson was discharged. The Union had decisively won the
election, the Union had been certified by the Regional
Director, and the Respondent was accepting the outcome
of the election. Thereafter, at some unstated time,
bargaining negotiations between the Respondent and the
Union were begun.
While the "threat" which Rowland perceived from
Tyson amounted to nothing more than Tyson, a tall, husky
Negro, advancing towards Rowland while at the same time
challenging Rowland's authority as his boss, I am of the
opinion that Tyson's talking back to Rowland after
Rowland asserted that he was in complete charge so
angered Rowland as to provoke him into discharging
Tyson, an employee who had given him problems for a
considerable period of time. Under all the circumstances I
conclude that Tyson's discharge was not motivated by
antiunion consideration and did not violate Section 8(aX3)
and (1) of the Act. The allegations of the complaint
concerning Tyson's discharge are hereby dismissed.
c. The Respondent's interrogation and threats in
violation of Section 8(a)(1) of the Act
As found above, after Willie Jones commenced his
organizing efforts among the Respondent's drivers, Row-
land questioned employees Polk, Willie Jones, Howard,
Henderson, and Tyson about these organizing activities.
More specifically, Rowland questioned them as to how the
union cards came to be found in the Respondent's trucks,
whether they had signed union cards, who had the cards,
or why they felt they needed the Union. In addition, in the
course of these conversations Rowland -made remarks
about losing the Chronicle contract, changing the name on
the trucks, and McNair's leasing the trucks to its other
customers, statements which I have found were intended to
impress upon the employees that their jobs would be
jeopardized if the Union came in. It also threatened that
part-time employees would not be- needed if the Union
came in. Such threats of loss of employment were plainly
coercive and violated Section 8(a)(1)' of the Act. And
Rowland's questioning of employees, occurring as it did in
a context of threats of loss of employment, also exceeded
the bounds of Section 8(a)(1) of the Act.
As found 'above, in the Respondent's letters to the
employees and in Rowland's speech, the employees were
repeatedly reminded of the possibility of their losing their
jobs by being replaced during a strike which would
probably be caused by the Union. And in the many
conversations which Rowland admitted having with
employees during the preelection period, Rowland told
employees that the Respondent had only one customer, the
Chronicle, that its contract with the Chronicle was
terminable on 30 days' notice, that competitors were
seeking to obtain this contract, and that the Respondent
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had noway of exerting pressure on`the Chronicle to grant a
higher wage allowance. Rowland further admitted that in
these -conversations he made statements to the effect that
the Respondent did not own its trucks or the building, and
-that, if the Respondent lost its contract with the Chronicle,
General Manager McNair could change the" sign on the
trucks and could continue to lease, the trucks-to other
customers of McNair Truck Leasing. -
Such comments were -not predictions based on objective
fact as to "demonstrable `economic consequences"' of
unionization (N.L.R.B. v.,GisselPacking Cb., 395 U.S. 575,
618-619). The Union had made - no demands on the
Respondent and the Respondent had no basis for
assuming that the Union's demands would lead to a strike.
Nor is there, any basis, in the record for the Respondent's
repeated assertions that it had no way of bringing pressure
on the Chronicle to grant a higher wage allowance. There is
no evidence that the Respondent had even attempted to
-work out, such an agreement with the Chronicle. The net
effect of the, totality of the Respondent's letters to the
employees, Rowland's speech, and Rowland's' remarks to
employees on the many occasions on which he spoke to
them. during the preelection period, in my opinion, was to
leave the impression in the minds of his hearers, who were
not highly educated persons, that unionization might result
in, the loss- of their jobs. I believe that Rowland's words
were, carefully chosen to leave just this impression in the
minds of the employees. Such words, I conclude, do not
fall within -the protection of Section 8(c) of the Act or the
First Amendment, but rather, as in Gissel (395 J.S. at 620),
amount to "coercive threats" inviolation of Section 8(a)(1)
of the Act. - -
McNair's statement to Polk to the effect that the Union
could not make him sign a contract and his comments to
Polk,and Tyson about changing the signs on the trucks and
leasing 'them, to other customers, which were intended to
and did convey_ the idea that union representation would
result in the loss of their jobs, were also coercive and
constituted illegal interference, restraints and coercion in
violation of Section 8(a)(1) of the Act.
matters, and by stating in effect that the Respondent would
not sign a contract, with the Union, the Respondent has
further interfered with, restrained, andcoerced its employ-
ees in the exercise of the rights , guaranteed in Section 7 of
the Act, thereby engaging in unfair labor practices - in
violation of,Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of,the Act.
THE REMEDY
Having .found that the Respondent has engaged in unfair
labor practices, my Recommended Order will direct that
the Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
I have found that the Respondent, discharged Mack
Jones, John Howard, and Willie Jones in violation of
Section 8(aX3) and (1) of the Act. To remedy this unlawful
conduct my Recommended Order will provide that the
Respondent offer to the above-named employees immedi-
ate and full reinstatement to their'former jobs or , if these
jobs no longer exist, to substantially equivalent jobs,
without prejudice or their setlioriy and other rights and
privileges; My Recommended Order will further direct that
the Respondent makeeach of the above-named employees
whole for his losses , resulting from -the Respondent's
discrimination against him-by payment-to him- of the sum
of money he would have earned from the date of his
discharge until the date on which the Respondent offers
him reinstatement, less his net interim earnings . Backpay
shall be computed on a quarterly basis and shall include
interest at 6 percent per annum, as provided in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact, conclusions of law,
and the,entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following, recommended:
ORDER I6
CONCLUSIONS or LAw
1. By discharging Mack Jones on I August 26, 1970,
John Howard on August 30, 1970, and WiIiie Jones on
August 31, 1970, the Respondent has discouraged meni-
bership',in General Drivers, Warehousemen and Helpers
Local Union No. 968, affiliated with International Brother-
hood of Teamsters, Chauffeurs and Helpers of America, by
discrimination in regard to tenure, terms and conditions of
employiyient and has interfered with, restrained, and
coerced its employees - in the exercise of the rights
guaranteed in Section 7 of the Act, thereby engaging in
unfair labor practices in violation of Section 8(a)(3) and (1)
of the. Act.
By ,making threats of loss of employment and other
reprisals againstf ' employees because of their union activi-
ties, by coercively questioning employees, about union
16 In'the event no exceptions are filed to this recommended Order as
provided by Sec. 102.46 of the Rules and Regulations of the National Labor
Relations , Board, the findings , conclusions and recommended Order herein
shall, as provided in Section 10(c) of the Act and in Sec. 102.48 of the Rules
The Respondent, Greater Houston Cartage Company,
Houston, Texas, its officers, agents , successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in General Drivers, Ware-
housemen and Helpers Local Union No. 968, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, or any other
labor organization, by discharging,or in any other manner
discriminating against employees in regard to their hire or
tenure of employment or any terms or condition of
employment.
(b) Threatening employees with loss of employment or
other reprisals because of their union activities.
(c) Making statements to employees to the effect that it
will not sign a union contract. -
and Regulations be adopted by the Board -and become its findings,
conclusions , and order, and all- objections thereto shall be deemed waived
for all purposes.
GREATER HOUSTON CARTAGE CO.
(d), Coercively questioning employees about union
matters.
(e) In any other manner interfering with, restraining, or
corecing employees in the exercise of rights guaranteed
in Section 1 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to Mack Arthur Jones, John Howard, and
Willie F. Jones immediate and full reinstatement to their
former jobs or, if these jobs no longer exist, to substantially
equivalent jobs, without prejudice to their seniority , or
other rights and privileges, and make each of them whole
for any loss of pay suffered by reason of his discharge in
the manner set forth in the section of this discharge in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Notify the above-named employees, if presently
serving in the Armed Forces of the United States, of their
right to full reinstatement upon application in accordance
with the Selective Service Act, and the Universal Military
Training and Service Act, as amended, after discharge
from the-Armed Forces.
(c) Preserve and, upon request, make available the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, per-
sonnel records and reports, as well as all other records
necessary to analyze and compute the amount of backpay
due under the terms of this recommended Order.
(d) Post at its-office and yard at Houston, Texas, copies
of the attached notice marked "Appendix."17 Copies of
said notice, on forms provided by the Regional Director
for Region 23 after being duly signed by the Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 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 any other material.,
(e) Notify the Regional Director for Region 23, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.ls
17 In the event that the Board's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be, changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
is In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify said Regional Director, in writing, within 20 days from the date of
this Order, what steps the Respondent has taken to comply herewith:'
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
1045
After a trial in which all parties had the opportunity to
present their evidence, it has been decided that we violated
the law and we have been ordered to post this notice. We
intend to carry out the order of the Board and abide by the
following:
WE WILL NOT discharge , or otherwise discriminate
against any employee because of his union activities.
WE WILL NOT threaten employees with loss of
employment or other reprisals because of their union
activities.
WE WILL NOT make statements to employees to the
effect that we will not sign a union contract.
WE wILL NOT coercively question employees about
union matters.
WE WILL offer immediate reinstatement with back-
pay to Mack Arthur Jones, John Howard, and Willie F.
Jones.
Our employees are free to join or assist any union .and to
engage in concerted activities for their mutual aid or
protection.
WE WILL NOT in any manner interfere with, restrain,
or coerce employees in the exercise of these rights.
GREATER HOUSTON
CARTAGE COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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. ,
Any questions concerning this notice or compliance with
its provisions may be directed'to the Board's Office, Room
6617 Federal Office Building, 515 Rusk Avenue, Houston,
Texas 77002, Telephone 713-226-4296.