Oklahoma Transportation Co.

National Labor Relations Board - Board Decisions

Jan 19, 1943

46 N.L.R.B. 1214 (N.L.R.B. 1943)

In the Matter Of OKLAHOMA TRANSPORTATION COMPANY and BROTHER;
HOOD OF RAILROAD TRAINMEN
Case No. C-0366.-Decided January 19, 1943
Jurisdiction : motor transportation industry.
Unfair Labor Practices
Interference, Ttestramt, and Coercion: statements disparaging union ; interroga-
tion of an employee as to union affiliation ; threatening employees with dis-
charge and other reprisals for union membership and activity ; posting and
distributing letter of employer's president to its drivers derogatory of union ;
allowing anti-union cartoon and editorial' to remain on employer's bulletin
board next to Board notice of election. , . ,
Discrimination: discharge and refusal to reinstate two employees and'imposition
of and refusal to revoke penalty against another employee, because of union
membership and activity.
Remedial Orders : employer ordered to cease and desist unfair labor practices;
reinstatement and back pay awarded ; revocation of penalty directed.
Mr. Fontaine Martin, Jr., for the Board.
Mueller and Mueller, by Mr. Karl H. Mueller, of Fort Worth, Tex.,
for the respondent.
Mr. A. I. Robinson, of Wichita, Kans., for the Union.
'Mr. Max E. Halpern, of counsel to,the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed on May 27, 1942, by Brother-
hood of Railroad Trainmen, unaffiliated, herein called the Union,
the National Labor Relations Board, herein,called the Board, by the
Regional Director for the Sixteenth Region (Fort Worth, Texas),
issued its complaint dated July 17, 1942, against Oklahoma Trans-
portation Company, Oklahoma City, Oklahoma, 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.
46 N. L. R. B , No 150.
1214
OKLAHOMA TRANSPORTATION COMPANY 1215
Copies of the complaint, accompanied by notice of hearing, were
duly served upon the respondent and the, Union. -
With respect to the unfair labor practices, the complaint as amended
at the hearing- alleged, in substance, that the respondent, by named
officers, supervisory and other employees : (1) from on or about Sep-
tember 1, 1941, disparaged and expressed disapproval of, the Union,
warned its employees that union support would be considered dis-
loyalty to- the respondent, and threatened its employees with discharge
or other reprisals if they engaged in union activities; (2) on or. about
January 19, 1942, posted or caused to be posted on its bulletin board a
letter, disparaging the Union; (3) on or about January 25, 1942, at-
tended a union meeting and made derogatory and intimidatory re-
marks concerning the Union; (4) on or about March 25, 1942, posted or
caused to be and allowed to remain posted a newspaper, cartoon and
editorial disparaging labor organizations; (5) on or about January
14, 1942, discharged and thereafter refused to reinstate Robert Fitz-
gerald and Albert Dee Lang,' and on or about May 5, 1942, imposed
upon and thereafter refused to remove 25 demerits from the work
record of Benjamin Franklin Morris,' because these employees joined
and assisted the Union and engaged in other concerted activities for
the purposes of collective bargaining and other mutual aid or protec-
tion; and (6) by the foregoing acts interfered with, restrained, and
coerced employees in the exercise of the rights guaranteed in Section 7
of the Act.
The respondent filed an answer, dated July 28, 1942, admitting the
discharge and refusal to reinstate Fitzgerald and Lang, and the im-
position of and refusal to remove the aforesaid penalty from Morris,
but denying that it had engaged in any unfair labor practices.
Pursuant to notice, a hearing was held from August 13 through
August 20, 1942, at Oklahoma City, Oklahoma, before Carl C. Wheat-
on, the Trial Examiner duly designated by the Chief Trial Examiner.
The Board and the respondent were represented by counsel and the
Union by its representative. All parties participated in the hearing
and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues.
At the conclusion of the Board's case and again at the conclusion of
the hearing, the respondent moved to strike the allegations of para-
graph 4 of the complaint with respect to the individuals named therein
and to dismiss the complaint. The motions were denied by the Trial
Examiner. At. the conclusion of the hearing counsel for the Board
moved to conform the pleadings to the proof with reference to names,
dates, and similar minor matters. The motion was granted without
objection. The Board has reviewed these and other rulings of the
' Referred to in the record as Dee Lang.
2 Referred to in the record as Frank DTorris
1216 DECISIONS OF-NATIONAL LABOR-RELATIONS BOARD
Trial Examiner on motions and on objections to the admission of evi-
dence, and finds that no prejudicial errors were committed. The rul-
ings are 'hereby affirmed. The parties were granted opportunity to
argue orally before and to file briefs with the Trial Examiner. The
parties did not present oral arguments before the Trial Examiner, but
counsel for, the Board filed a brief with the Trial Examiner.
On October- 9, 1942, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the respondent and- the
Union, in which he found that the respondent had engaged in and was
engaging in unfair labor practices, within the meaning of Section 8 (1)
and (3) and Section 2 (6) and (7) of the Act, and recommended that
the respondent cease and desist therefrom and take certain affirmative
action deemed necessary to effectuate the policies of the Act, including
-t116 reinstatement with'back- pay of Fitzgerald and Lang and the
revocation of the penalty 'imposed upon Morris.
On November 11, 1942, the respondent filed exceptions to the Inter-
mediate Report, and-on November 18, 1942, a brief in support of its
exceptions. At the request of the respondent, 'a hearing for the purpose
of oral argument was scheduled to be held before the Board at Wash-
ington, D. C., on December 8, 1942. On December 5,1942, the respond-
ent withdrew its request for oral argument and upon consent of all
parties no hearing for the purpose of oral argument was held. The
Board has considered the respondent's exceptions and brief, and inso-
far as the exceptions are inconsistent with the findings, conclusions, and
order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, an Oklahoma corporation, is engaged as a common
carrier in the transportation of passengers, property, and United
States mail by motor bus. It operates as an interstate carrier under
Interstate Commerce Commission Docket No. 460, pursuant to the Mo-
tor'Carrier Act of 1935. It has its own interstate schedules and makes
connections with other motor carriers which do interstate business.
During the period from June 1941 to June 1942 the respondent trans-
ported by motor carrier 1,386,438 passengers and operated a .total of
4,555,903 miles. The respondent operates 65 busses and employs 191
employees of whom 75 are drivers. The respondent admits that it is
engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Brotherhood of Railroad Trainmen is an unaffiliated labor organiza-
tion and admits to membership bus drivers of the respondent. '
OKLAHOMA TRANSPORTATION COMPANY 1217
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Prior to the fall of 1941, there had been no union activity among ,the
employees of,.the respondent except for an ineffectual attempt 'to in-
tr'oduce union organization in July and August 1940. About Novem-
ber -1941, bus drivers Fitzgerald and Lang, after discussing affiliation'
with several members of the Union employed by the Santa Fe Trail-
ways `Company, started an organizing campaign among their fellow
employees. They suspended their activities during the Christmas sea-
son, but about January 8, 1942, requested A. E. Warnberg, a Santa Fe
bus operator and committee chairman of the Union, to supply them
with union authorizations. Thereafter they discussed union organi-
zation with many of the respondent's drivers, solicited their member-
ship in the Union, and secured signatures. to union authorizations.
Fitzgerald and Lang continued their activities until January 13 when
both of them were discharged, as hereinafter discussed.
On January 19, Tom Cooper, the respondent'spresident, addressed
a letter to the respondent's drivers, posting a copy on the bulletin
board in the drivers' room where it remained for several months. In
this letter Cooper stated, among other things, that he had been in-
formed that outsiders were attempting to induce the bus drivers to
join a union; that, in doing this, they had exerted considerable pres-
sure upon' the drivers and had falsely stated that they could not drive
unless they joined the Union; but that the drivers could do as they
wished about joining the Union, since the respondent had never em-
ployed or discharged anyone "because he did or did not belong to an
organization." The letter stressed the harmony that had existed in
the past between the management and its employees and closed with
the statement that the respondent proposed to "correct any impres-
sion" that the drivers "are going to be compelled to join any organiza-
tion and pay out a lot of money for the privilege of holding [their]
job."
According to employee Frank Morris' testimony, which was credited
by the Trial Examiner, on or about January 20, Cooper called Morris,
who had signed a union authorization about January 12, into his office
and asked his advice as to whether the respondent should enter into a
.union contract; Morris advised Cooper to do so; Cooper refused, stat-
ing that he would not sign any union contract, that he would "close the
doors and they will all be out of a job," and that he would "sell the
whole thing out," before he would "have a union down here dictating
to [him] and telling [him] what to do." Although Cooper denied
making the statements attributed to him by Morris, he admitted that
he had sought Morris' advice concerning his desire to maintain "har-
I 504086--43-vol. 46-77
1218 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
rnony" among the drivers who were "having some argument pro and
con," and that Morris had suggested making a contract with the
drivers directly rather than, apparently, with the Union. Cooper
further admitted that at about the same time he had sought similar
advice from Stacy Long, the son-in-law of,one of the original owners
of the respondent and a,bus driver, for 11 years, who had previously
been opposed to the Union. In view of the finding of the Trial Ex-
aminer who observed the witnesses, in view also of Cooper's partial
admissions, and of the fact that this was the only occasion upon which
he had, requested advice from Morris or Long, we find that Cooper
made the-statements in his conversation with Morris substantially as
testified to by the latter.
On January 23, a meeting of the respondent's bus drivers who were
interested in the Union, wds held in the hotel room of A. I. Robinson,
field supervisor of the Union. The meetmg was attended by Gene
Horne, the respondent's general superintendent, and Bud Cornish, then
an auditor for the respondent. Several Board witnesses,' testified, in
substance, that although Cornish had Robinson's permission to attend,
shortly prior to the beginning of -the meeting, Morris advised Cornish
not to come to the meeting; that Horne had not been invited to attend;
that Horne and Cornish had accompanied Don Stephenson ,4 a ticket
agent of the Union Bus Station, and Ross George and Verne Denley,
two employees admittedly opposed to the Union, to the meeting; and
that Cornish and Horne engaged in questioning and heckling Robinson
and Morris, until they were requested to leave. Cornish and Horne
claimed that Robinson had invited both of them to attend, and had
even requested them to invite Cooper, the respondent's president, and
other officials. Cornish testified that he was unaware that the meeting
was for drivers in favor of the Union and that he understood that
Morris, who was a preacher, was scheduled to make a speech. The im-
plausibility of Cornish's explanation for his attendance at the meeting
and its marked similarity to Horne's testimony that he came only to
enjoy a speech by Morris warrant the Trial Exanliner's and our denial
of credence to their testimony. Although Cornish and Horne denied
that they questioned or heckled the union representatives, this testi-
mony is not only inconsistent with Cornish's admission that he asked
Robinson "what pickets [did] he come in on," but also is in conflict
with the testimony of the respondent's witnesses Denley and George,
both of whom admitted that Horne questioned Robinson concerning
,the benefits the Uiiion would afford the drivers. Moreover, Cornish's
and: Horlie's testimony, couched in identical language, that when in-
quiry was made at the meeting as to the sentiment of those present for
Robinson, Morris„ and Fitzgerald
4 Referred to in the complaint as Don Stevens
OKLAHOMA TRANSPORTATION COMPANY 1219'
or against the. Union, Horne said':, "I`believe this has ceased to be an
open meeting and I beg to be excused," lacks conviction. We credit, as
did the. Trial Examiner, the version of the meeting substantially as
testified to by the above-named Board witnesses. We find further that
the activities of Horne and Cornish 5 at this meeting are attributable
to the respondent.
. About January 25, Robert Bowers, a supervisory employee of the
respondent," asked James Rogers, Whom Bowers had hired, whether
or, not he had signed a union authorization. When Rogers answered
in the affirmative, Bowers asked Rogers whether the latter believed
he was treating Bowers fairly and whether the Union could do him
more good than Bowers could. Bowers also stated to Rogers that he
(Bowers) did not think the drivers would ever get a union function-
ing,,but that, if they did, he imagined Cooper would discontinue some
of the short lines and thus throw some of the newer -drivers, such as
Rogers, out of a job. Bowers asked Rogers not to say anything about
this conversation and told him that if they ever testified in court, his
word would be as good as Rogers' and that he would swear he had
not made ally of these statements. Bowers admitted having had a
conversation with Rogers concerning the Union but categorically de-
nied any interrogation of Rogers as to his union affiliation and the
other statements attributed to him by Rogers. Upon the basis of the
Trial Examiner's judgment of the credibility of these witnesses whose
demeanor on the witness stand he observed,. we find, as did the Trial
Examiner, that Borers made the above statements substantially as
testified to by Rogers. -
In a letter dated January 29, 1942, addressed to Cooper, the Union
claimed that a majority of the respondent's bus drivers had au-
thorized the Union to represent them for the purpose of collective bar-
gaining and requested that a date be set' for a conference at which
proof of such authorization might be submitted and any other details
essential to recognition of the Union might be arranged. Cooper,
in reply, proposed a consent election. Thereafter, and on March 28,
5Cornish , at the time of the meeting and until about April 15, 1942, was the respond-
ent's auditor, and thereafter , its assistant traffic manager . As auditor, he worked. in the
respondent ' s offices, and had one clerk under his supervision , lie checked the drivels' trip
reports and audited the drivers' revenues onithe basis of these reports ; he also prepared
daily reports for the respondent 's officials as to its daily operations, revenue, bank balance,
and cash position Although counsel for the Board conceded that Cornish was not a super-
visory employee at the time of this meeting, it is apparent that his duties were of a confl-
dential nature , identifying him-with the management Moreover , the fact that he accom-
panied superintendent Horne to the meeting and there followed the example of obstructive
tactics and anti -union conduct set by Horne , wairanis imputation of responsibility for
Cornish 's activities to the respondent
BBowers, is Cooper's son - in-law and the respondent 's traffic manager , in charge of the
sale of, tickets and the making of schedules He has supervision over the ticket agents
with autlim ity to brie and discharge
1220 DECISIONS ' OF' NATIONIAL IABOR RELATIONS BOARD
the parties entered into an agreement for a consent election to be
held on April 6, 7, 8, and 9, 1942.
Sometime in March and prior to the consent election; Cooper in-
vited Gene Lowe, a bus driver in the respondent's employ for more
than 10 years and a member of the Union, into- his office for -a talk,
something which Cooper had never done previously. During the
course of their conversation, according to Lowe, Cooper said to him :
"You vote the way you want to but we don't need the B. R. T."
'Cooper denied having made such- a statement to Lowe or having dis-
cussed union matters with him. He asserted that he had had two
conversations with Lowe which concerned a purely personal matter
involving Lowe's embarrassed financial condition which; Cooper testi-
fied, he had made suggestions to alleviate., Cooper's protestation as to
the assistance he rendered Lowe, lends credence to Lowe's testimony
which the Trial Examiner credited, as we do. We find, accordingly,
that Cooper made the statement attributed to him by Lowe.
According to. Morris, about a week or 10 days -prior to April 8,
there appeared on the respondent's bulletin board in the drivers' room,
alongside the notice of election, a newspaper clipping from the Sun-
day, March 15,1942, edition of "The Daily Oklahoman.". The clipping
contained a cartoon captioned "Big Man, Little Hammer," and an
editorial entitled "Government a Partner with Racketeers." . The car-
toon depicted "U. S. Labor Man-Power" as a giant beating a huge
sword representing "Arms, Ships, Planes" on an anvil, with an exag-
geratedly small hammer tagged "40 Hour Week." The editorial dis-
cussed several instances in which the federal government had sup-
ported unions in their exaction of large initiation fees and dues from
men working on war projects. It also gave examples of work slow-
downs by unions on defense jobs. It contended that "fighting against
these conditions is not fighting against unions," but against the labor
racketeers in whose hands the majority of union men were helpless.
The editorial closed with these words : "Are the people of this country
fighting for the preservation of American liberty or merely to make
The world safe for labor racketeers?"
All the respondent's supervisors who testified at the hearing denied
that they had posted 'the clipping or caused it to be posted. Hill,
the respondent's vice president, testified that, he personally posted
the'notice of election and that neither then nor at any later time did
he see the clipping on the bulletin board. Horne testified that he
never saw the clipping until the day he removed it, and furthermore,
that he did not see it on the bulletin board, 5 or 10 days after the
election notice had been posted, when he and union Representative
Robinson had occasion to observe the condition of the bulletin board
OKLAHOMA TRANSPORTATION COMPANY 1221
upon Robinson's request to inspect the notice of election. It appears
that the respondent's bulletin board is located in the drivers' room,
to which only employees of the respondent have access, and, usually
contains official company bulletins. Although on occasion personal
notices have appeared upon the bulletin board without the permis-
sion of the respondent, it is clear that the respondent exercised
supervision and control over the bulletin board. It was undenied,
moreover, that the respondent's supervisors are constantly' in and out
of the drivers' room, and that during the time that Morris claims
the clipping was on the bulletin board, various of the respondent's
officials were frequently there.
Ralph S. Clifford, the Field Examiner in charge of the election,
testified that at the opening of the polls on April 8, he objected to
the presence of the clipping alongside the notice of election; that
Cornish, who was acting as observer for the respondent, agreed with
Clifford and Morris, the observer for the Union, that the clipping
should not be on the bulletin board at that time; that Cornish there-
upon moved the clipping to the opposite side of the bulletin board
and turned it around with its face to the wall and its cardboard side
to the front so that its contents were not visible. Clifford further
testified that around noon, Horne entered the drivers' room, observed
the clipping, inquired how it got turned around, and upon Cornish's
answer that Clifford had objected to the' clipping and that he,
Cornish, had altered its position, asked why someone had not already
taken it down, and forthwith removed it, pushed it together and
dropped it into the waste paper basket on the opposite side of the
drivers' room.? Morris corroborated the 'foregoing testimony of
Clifford. Horne testified that his attention was attracted to the clip-
ping by its size, its protruding over the side of the bulletin board
and "its blowing; flopping there. on the board some way or other"
and by Cornish's remark as- to its presence on the bulletin board and
Clifford's objection. The Trial Examiner did not accept Horne's'
explanation, nor do we consider it persuasive s , We are convinced
7 Horne 's testimony concerning this Incident is as follows :
Well , I went into the drivers ' room and the , only persons in the drivers ' room were
Mr Clifford , Mr Morris , and Mr Cornish , and I walked around on the side of the pool
table where they were seated and I said , "Boys , how is business 'today? . . and I
',tarted out of the pool room or the drivers' room rather and walked at ound the end' of
the pool table near the bulletin board and noticed this newspaper clipping that was
turned with its face to the wall and I says , "what the devil is this up here anyway7"
And Coinish said ' Well, that is an editor ial out of the Dai15 O'aahoniau It was
down here close to this poster here that is posted here, the notice of election Mr
Clifford has caused it being there and I put it down there'
I said, "Well , if they don ' t want it up'theie, let's tear it up and put it in the paper
basket and get it down " So I picked the thing up and looked at it and tote It in two
and put in ( sic) the paper basket.
Horne 's testimony is further disciedited by his denial of the entirely credible testimony
of Clifford that the clipping introduced in evidence was the sane clipping which had been
1222 DECISIONS, OF NATIONAL' LABOR _'RELATIONS BOARD
that Horne's inquiry as to the.a,ltered position of the clipping im-
mediately upon his-entry into the drivers' room and his prompt
removal of it without protest indicates prior knowledge by Horne of
the presence of the clipping-on the bulletin • board, and support the
finding of the Trial Examiner, with which we are in accord, that
Horne recognized the clipping which was then on the bulletin board.
In view of the patent incredibility of the foregoing testimony of the
respondent's witnesses, which necessarily makes colorable their re-
maining testimony with respect to the length of time the clipping
was on the bulletin board, and in view also of the Trial Examiner's,
estimate of the credibility of the witnesses, we find that the clipping
remained on the respondent's bulletin board alongside the notice of
election for at least a week prior to the election. We find further,
upon the entire record, that the clipping remained on the bulletin
board during this period with the - respondent's knowledge and
approval.
The posting and distribution of President Cooper's letter to the
drivers on January 19, 1941, his anti-union statements and those of
Traffic Manager Bowers, to various drivers of the respondent, the
activities of Horne and Cornish at the union meeting oil January
23, the appearance of the derogatory cartoon and editorial on the
respondent's bulletin board, and in addition, the discharge of Fitz-
gerald and Lang and the imposition of demerits on'Morris, which,
as hereafter discussed, were discriminatory, establish a pattern of
union hostility on the part of the respondent, and manifest a design
to^ discourage membership in the Union. These facts make plain a
course of conduct calculated to interfere with and destroy em-
ployee self-organization. We find, as did the Trial Examiner, that
by the foregoing statements and activities of the respondent's officials
and supervisory employees, the respondent has interfered with, re-
strained, and coerced its employees in the exercise of the rights
guaranteed in Section,,? of the Act. .
B. Th-e discriminatory discharges and the imposition of demerits
The complaint alleges that the respondent discharged Fitzgerald
and Lang, and imposed 25 demerits' upon Morris, because these em-
ployees joined or assisted the Union. The respondent's answer ad-
mits the discharges and imposition of the demerits, but deifies any
renioved'by House from the respondent's bulletin board, Horne adnutlmg only that it was
"similar " Significantly, the respondent , in its brief, though not conceding their correct-
ness. does not attack the Trial Examiner' s findings of fact concerning the clipping, but
argues that the clipping did not mention the Union or attack unionq generally, and there-
fore , could not constitute a violation of the Act There is clearly no merit in this conten-
tion
OKLAHOMA TRANSPORTATION COMPANY 1223
unfair labor practices in connection therewith. The respondent's
contention is that the discharges and the imposition of demerits were
for cause.
1. The discharge of Fitzgerald
Fitzgerald had been employed as a driver by the respondent for
over 8 years when he was discharged on January 13, 1942. As ap-
pears above, Fitzgerald became interested in the Union in November
1941, and he, together with Lang, whose case is, hereafter discussed,
joined the Union and discussed union affiliation with other bus
drivers of the respondent. This activity on Fitzgerald's part soon
came to the respondent's attention. Shortly after Thanksgiving,
according to Stacy Long, who, as above mentioned, was then opposed
to the Union, Long informed Superintendent Horne that Fitzgerald,
had mentioned organizing a union to a group of drivers who were
discussing the respondent's refusal to grant wage increases. Long
testified also that Horne had stated that he knew of Fitzgerald's
union activity and that Fitzgerald "was going to get himself fired"
for it. Although Horne denied having made this statement to Long,
as he categorically denied throughout his testimony anti-union state-
ments attributed to him by other witnesses, the Trial Examiner
credited Long's testimony, as do we.
-In December, according to the admission of Jack, Williams, a.
former passenger agent for the respondent,9 Fitzgerald discussed
with Williams the possibility of organizing a union among the
drivers, and informed him that "we were planning on starting this
organization in the near future." Fitzgerald'also discussed union
organization with approximately two-thirds of the respondent's
drivers, some of whom, like Ross George, were openly opposed to
the Union, and between January 10, when he obtained a quantity
of union authorizations from Union Representative Warnberg, until
January 13, when he was discharged, he persuaded a number of the
drivers to sign union authorizations. On January 12, according to
Fitgerald's undenied testimony, he had a conversation concerning
his union activity with Buck Foster, admittedly the respondent's
shop foreman at Fort Smith, and left with him a union authoriza-
tion for Frank Morris.
Williams, who was-succeededs by Cornish ,-,testified that his duties consisted of checking
the respondent 's ticket agents and instructing them as to the correct method of selling bus
transportation , the preparation of reports , and their general duties ; that his work required
travel to the various stations on the respondent 's bus routes ; and that he had his own
private office in the respondent ' s headquarters in Oklahoma City. He worked directly with
the traffic manager We find, as did the Trial Examiner , that Williams was a supervisory
employee. i
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 13, upon completion of his Fort Smith-Oklahoma City
run, Fitzgerald found' in his-mail box a letter from Superintendent
Horne advising him that, "due to the inefficiency of operation of
[his] schedule," his services were no longer necessary. The respond-
ent has since refused to reinstate him.
According to Vice-P'resid'ent Hill, the facts leading directly to'Fitz-
gerald's discharge were, as follows : On January 5, 1942, Hill, had occa-
sion to ask Auditor Cornish for a "daily report"; 10 Cornish advised
Hill that;, due'to the Christmas rush, his work was behind ; on January
7,'when Hill again requested his "daily report," Cornish replied that
"soiree of the drivers' reports were not in" -'and as a result he had been
unable to close his books and make up the report; Hill thereupon asked
Cornish for "the names of any drivers who were behind with their re-
ports"; the next day Hill found upon his desk a slip of paper upon
which Cornish had indicated that Fitzgerald's trip reports for Janu-
ary 1 and 3 were late; 12 upon Cornish's inability to give any reason
for the delay of Fitzgerald's reports, which Cornish had received the
preceding day, Hill demanded Fitzgerald's trip reports from,January
1 to 7, "to see' if there was anything unusual in connection' with his
operations which would cause a delay in turning in the reports"; on
January 12, Hill took Cornish's note to Horne, recalled to him a warn-
ing which Hill had personally given Fitzgerald the previous year
concerning the withholding of cash fares from his reports,13 and in-
structed Horne to discharge him. The next day Horne discharged
Fitzgerald by letter, in which the reason for the discharge was alleged
to be "inefficiency of operation of schedule."
At the hearing the respondent maintained that Fitzgerald was dis-
charged solely'because he failed to file prompt trip reports containing
cash fares. Admittedly, it is the respondent's practice to require
prompt filing of trip reports after short trips such as those made by
.Fitzgerald on January 1 and 3. It is also true that Fitzgerald failed
to meet this requirement. The question remains, however, whether the
respondent discharged Fitzgerald because of his lateness in filing his
reports, including cash, collected, or, instead, made use of Fitzgerald's
10 The "daily report" is an inter -office repot f prep .iied , by the auditor and based , in part,
upon the drivers ' trip reports ( See footnote 11)
11 The drivers are required to submit a report at the end of each tup ; the trip report is
in the form of an envelope which contains the tickets collected and cash fares received, and
on front , information as to the driver , date run number , time out and m,- number of
passengers , record of cash fares , and mileage
iL This note did not . contain the names of any other drivers The record does not disclose
whether there were any other di ivei s who wei e late in filing trip reports at this time
13 In February 1941 Hill wrote Fitzgeiald , threatening to discharge him the next time lie
failed to remit cash fares collected with his trip ieports' Fitzgerald admitted that he had
not filed his trip reports until Januaiy 7 because he had used money collected from cash
fares received on January i and 3 to buy his meals Fitzgerald asserted that because'of
Hill ' s warning lie did not file his ieports without the cash faies , but waited until he received
his pay check so that he could include the casli,fares
OKLAHOMA TRANSPORTATION COMPANY • 1225
delayed reports as a means of discharging Fitzgerald because of his
union activity. We are persuaded, upon the entire record, that the
respondent employed this infraction as a pretext to rid itself of an
outstanding-union member.
The record does not establish that other drivers were discharged for
being late in submitting trip reports and cash fares.'' Hill admitted
that he had written- letters to six or seven drivers during the 2 months
prior to the hearing, reprimanding them for being late in filing re-
ports. Admittedly, Hill did not threaten to discharge, let alone dis-
charge, any of these employees. Moreover, a letter written by Hill to
Rogers, a.driver, in June 1942, subsequent to the discharge of Fitz-
gerald, states that his reports "were probably held up in order to use
the Company's funds" until -receipt of his ,pay check. Further, Rogers
testified without contradiction by the -respondent, that subsequent to
the receipt of Hill's letter and as recently as August 4, 1942, he had
made several late trip reports and had not been reprimanded by the
respondent.
According to the testimony of Fitzgerald, as corroborated by'Lang,
when Fitzgerald questioned Horne and Hill, they asserted a variety
of reasons for his discharge. Hill admitted that when Fitzgerald
"asked him what ,else was wrong with his record," Hill "reminded him"
of his oversleeping and missing a run, his delayed departure on an-
other run, a fight with a passenger, speeding, as well as a ,prior acci-
dent. Moreover, the respondent in its brief emphasizes Fitzgerald's
"admitted conversion of Company funds" as one of the reasons for his
discharge. The record discloses, however, that it was not until Janu-
ary 14, the day following Fitzgerald's discharge, when he, accompanied
by Lang, went to -see Horne and Hill to discuss the reasons for their
,discharge, that The respondent received actual information, for the
first time and from Fitzgerald himself, that Fitzgerald Thad ,not filed
his reports of January 1 and 3 because he had-used funds collected for
his personal expenses. Clearly, then, the conversion of company funds
could not rhave been a reason for the discharge. 'Moreover, Hill ad-
mitte'd•at'the hearing, that when he concluded, to discharge Fitzgerald
he knew of no reason for Fitzgerald's delayed trip reports. Horne's•
testimony that on January 14 he told Fitzgerald that he was dis-
charged,.inter alia, "for the simple reason of your shortage of cash
"Horne testified that J C White. a'driver, had been discharged in November 1940 for
filing date trip reports containing cash faies• As we have found , Hornets testimony-was
not in other,respects credible In addition, the evidence discloses that, prior to White's
discharge , his salary had been garnisheed several times and that , according to the respond-
ent's rules , an employee whose salary has been twice garnisheed would be discharged 'We
concur with the-finding of the Trial Examiner that the evidence offered by the respondent
does not establish that' White was discharged for filing late trip reports containing cash
fares However , even if White were discharged ' for this reason , the respondent has failed
to explain the dissimilarity between the treatment of Fitzgerald and of other drivers who
were late in filing trip reports.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fares in your trip reports, also you failed to turn in any trip reports
from January 1 to 7," is not only inconsistent with the foregoing
testimony of Hill, but also with the fact that Fitzgerald's cash fares,
had been included in his reports when filed, and than Fitzgerald had
filed all his reports between January 1 and 7, except' those of January
I and 3, promptly. Thus, the patent unreliability of the respondent's
testimony, plus its assertion of these numerous reasons to justify the
discharge, casts further doubt .upon the respondent's assertion that it
discharged Fitzgerald solely because of his lateness iii filing reports 15
As we have already shown, the respondent was opposed to union
activity by its employees. The discharge of both Fitzgerald and
Lang, the two employees most prominent in promoting the Union, on
the same day,,by identical letters, and within a comparatively short
time after they became active in organizing the respondent's drivers,
the failure of the respondent to take similar action against other
'drivers who were late'in filing reports and remitting cash fares,fand
Horne's threat to discharge Fitzgerald because of his union activity,
impel the conclusion, and we And, as did the Trial Examiner, that
the respondent, discharged Fitzgerald because he joined and assisted
the Union. We find further that by thus discharging Fitzgerald the
respondent discriminated in regard to his hire and tenure,of employ-
ment, thereby discouraging membership in the Union and interfering
with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. The ' discharge of Lang
Lang, until his discharge on January 13, 1942, had been continu-
ously employed by the respondent as a bus driver for 15 years. With
Fitzgerald, he became interested in the Union in November 1941,
signed an authorization, and openly -talked about the Union, with
many of the respondent's bus drivers. , With Fitzgerald, Lang met
'Union Representative Warnberg on January 8, 1942, obtained union
authorizations, and made plans for a membership campaign, Lang
to contact the drivers on his schedule, the Southwest Division from
Oklahoma City to Wichita Falls, and Fitzgerald to, work the East-
bound Lines from Oklahoma City to Fort Smith, which was his sched-
ule. Between January 10 and 13 Lang discussed union membership
with a number of the respondent's drivers at Oklahoma City, Chick-
asha, Lawton, and Wichita Falls, various stops on his schedule.
is This conclusion is reinforced by Moiris teetnuony, which the Trial Examiner credited,
as we do, that about January 20 Cooper , told ?Joiris that he had checked Fitzgerald's -and
Lang's records and had found many reasons for which both of them could have been-dis-
charged 6 months previously. Cooper testified merely that he could not recall whether
Fitzgerald and Lang had been mentioned in this conversation
OKLAHOMA TRANSPORTATION COMPANY 1227 -
Lang also testified that on the morning of January 13, as he was
passing Passenger- Agent Williams' office in Oklahoma City, the lat-
ter called out and inquired of Lang's progress "in getting the boys
together." Although Williams denied having made this remark, he
admitted that Lang may have been in his office on that occasion,
since drivers were frequently in and out of his office. Williams also
asserted that he did not know of Lang's union activities until Fitz-
gerald and Lang so advised him on the,day after their discharge.
In view of the finding of the Trial Examiner, who credited Lang's
testimony, and of Williams' admitted knowledge of the union activity
then going on among the respondent's drivers, we find, as did the
Trial Examiner, that Williams made the statement attributed to
him by Lang.
On the evening of January 13, on his return,to Oklahoma City,
Lang also found in his mail box a letter of discharge similar in every
respect to Fitzgerald's letter of discharge. The respondent has ever
since refused to reinstate Lang.-
The respondent contended that Lang had been unable to operate
the run between Oklahoma City and Wichita Falls on schedule, that
because of this inability the respondent had instructed Lang to ex-
change runs with Tom Chesher, and that Lang was discharged be-
cause of his failure to make this exchange within the 10 days granted
him by the respondent."' The record establishes that Lang was fre-
quently late on his arrival at Oklahoma City, where passengers might
make connections with busses of other transportation companies.
I owever, the record establishes also that Frank Snow and Tom
Chesher, who preceded and followed Lang on this run, respectively,
were late almost as frequently as Lang," and were not removed for
°this reason.
The record is silent as to the reason for the frequency of the late
arrivals in Oklahoma City by Snow and Chesher, neither of whom
testified at the hearing. /Lang's testimony that he, obeyed orders in
arriving late at Oklahoma City is denied by the respondent. We deem
it unnecessary, under the circumstance herein, to resolve this conflict
in the evidence. Irrespective of whether the respondent was reason-
able in demanding that Lang relinquish his run, the record establishes
that the respondent's action in discharging Lang was motivated by his
union membership and activity.
"Under the respondents operations,, drivers ate entitled to select, upon the basis of
senioiity , the schedule they operate . Lang, who was 5th on the seniority list, had "bid-in"
and secured the Oklahoma City-Wichita Falls-i • un, with headquarters in Oklahoma City, the
trip beginning and ending at Oklahoma City, on August 21, i941 However , for 4 years
prior thereto, Lang had operated exactly the same run , except that his run began and
ended and his headquarters were , in Wichita Falls
11 Lang's immediate successor was Ernest Slaton . Although it appears that Slaton was
on time more often than Lang, Snow , and Chesher , Slaton operated the schedule for only a
short time and at comparatively irregular intervals.
1228 DECISIONS OP NATIONAL LABOR.RELATIONS BOARD '
According to Horne,-Lang's performance during the first 2 months'
operation of his new. run was satisfactory, but about December 1, he
warned Lang against operating behind schedule; shortly after Christ-
mas, Horne, dissatisfied with Lang's handling of his schedule, advised
him to exchange runs with Chesher, to which suggestion Lang replied
he would work something out; on January 1, 1942, Hill ,wrote Horne
that unless Lang, within a week or 10 days, exchanged his run for one
lie, could handle, Lang should be discharged; is on January 3, Horne
exhibited this letter to Lang and again requested him to exchange
runs with Chesher. Long testified that during the conversation with
Horne after Christmas, he informed Horne that, if the respondent
insisted upon his enchanging runs, he preferred another night run
between Oklahoma City and Wichita Falls, rather than Cheslier's run
which, admittedly, handled mail,as well as passengers, entailed addi
tional work days, and a, decrease in compensation, and that he also
requested Horne to inquire whether Hill would approve of Lang's
trade for a night run. Lang further testified that although on another
occasion, he again requested Horne to secure Hill's approval to Lang's
proposal, Lang never received from Horne any answer to his request.
Horne categorically denied that Lang had ever made such a request.
The Trial Examiner was not impressed with Horne's testimony and
did not credit this denial, nor do we. We find, as did the Trial Ex-
aminer, that Lang requested permission to make another' exchange
and- that Horne had not complied with this request by January 13
when the respondent, without further notice, discharged Lang by
letter of that date.
In view of the respondent's practice of permitting drivers to select
desired schedules on, the basis of Seniority and to exchange tllenl with
the prerequisite consent of all interested drivers, and in view also ofQ
Lang's 15 years of satisfactory service for the respondent, during a
considerable part of which he operated a similar run without criticism
or complaint, it taxes credulity to accept the respondent's explanation
that Lang was discharged solely because he failed to exchange for a
specific run, dictated by the respondent, within the comparatively
short period of 10 days. Furthermore, it does'not appear that Carrol,
who was ordered by the respondent in 1939 to exchange runs because
of. his incompetence, was directed to trade for any particular run, as
Lang was, or that he was advised that he would be discharged unless
he effected a trade within a prescribed period of time. It was ad-
mitted that Carroll was granted a 30-day leave of - absence to make
arrangements for an exchange of runs.
Finally, as in Fitzgerald's case, the respondent assigned numerous,,
additional grounds to justify Lang's discharge. Thus' on the day
18 Significantly , Hill specifically referred , to an exchange with Chesher as Horne had
previously suggested to Lang '
OKLAHOMA TRANSPORTATION COMPANY 1229
following his discharge, Hill, "reminded" Lang of prior' accidents, an
allegedly false accident report, ,all exchange of runs without permis-
sion, and his lack of neatness. ^ ^ It was this past record of Lang's which
Cooper referred to as sufficient to' warrant Lang's discharge 6 months',
sooner, according to the testimony of Morris hereinabove credited.
Such assignment of reasons, which might have, but in fact did not
result.in Lang's discharge prior to his union activity, makes question-
able, in Lang's case as in Fitzgerald's, the respondent's sincerity in
:asserting that it discharged Lang solely because he failed to make the
exchange of runs within the period granted.
In view of the respondent's antipathy towards the Union, the com-
mencement of its criticism of Lang coincident with his engagement in
union activity, its simultaneous discharge of both Lang and Fitz-
gerald, whose activity was known to the respondent, and in view also
of the variety of reasons assigned for Lang's discharge, the disparity
between the respondent's treatment of Lang and ' of the only other
driver required to exchange a schedule, and the failure of the respond-
ent to consider Lang's request fora different exchange, we are con-
vinced, and find, as did the Trial Examiner that the respondent
discharged' Lang because of his union membership and activity,
thereby discouraging membership in the Union and interfering with,
restraining, and coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act.
3. The impositioii of demerits on Morris
Morris was hired as a bus driver by the respondent on February 24,
1930, and is presently so employed. About January 12, 1942, Morris
signed a union authorization in the presence of Shop-Foremaii Foster,
with whom the authorization had been left by Fitzgerald. Thereafter,
he openly engaged in union activity and the record establishes that
his activity was well known,to the respondent. As found above;
Cooper, the respondent's president, about January 20, questioned
Morris concerning'union activity among the respondent's drivers, and
the advisability of entering into a contract with the Union. On or
about January 29, Cooper had another conversation with Morris in
which he expressed disapproval of the discussions Morris' wife had
had with the wives of several of the responden't's-'drivers concerning
the Union. So far as the record discloses, Morris was the only driver,
after'the discharge of Fitzgerald and Lang, who continued to engage-,
in union activities to the knowledge of the respondent. 'On April 8,
shortly prior to the occurrence of the incident for which Morris was
penalized, as hereafter discussed, Morris served as the observer for the
Union in the consent election.
The facts which resulted in Morris' penalty are substantially undis-
puted. Due to an overload of passengers,, Morris departed from
1230 DECISIONS .OF ,NATI& AL LABOR RELATIONS BOARD
i
Oklahoma 'City for. Ardmore on April 12, at 1:10 a. in., about 30
minutes late, advising Maxon Walker, who was ordered, to operate a
"double" or second section, that he would meet him at Norman, an
intermediate bus' stop, about 20 miles from Oklahoma City. Morris
arrived at Norman about 1:50 a. in. and there discovered a flat tire on
his right, rear, inside, dual wheel. According to Morris, after assisting
the passengers getting off at Norman, he went into a taxicab office and
had the attendant call a nearby filling station for help to change the-
flat tire. Failing to obtain any assistance, he returned to his bus and
began making preparations to change the flat tire. As he started to
open his tool compartment, he observed two of the respondent's busses
approaching, the first driven by Glen Whitt, who was ordered, after
Morris left Oklahoma City, to drive a third section on this run, and
the second driven by Walker, as above-mentioned. According to
Whitt, the second and third sections arrived at Norman at about 2:10
a. in. -Morris testified that since he would gain time by transferring
passengers and baggage from his bus to another bus instead of chang-
ing the flat tire, and since it would be inadvisable to run the bus
without a spare tire and with perhaps no available assistance, over
200 miles, the distance between Norman and Dallas, he suggested to
Whitt that they exchange busses for the completion of the'run and
that Whitt agreed.1° Accordingly, the passengers and baggage on,
Morr'i's' bus were transferred to the second, and third sections. Walker
in his bus, and Morris in Whitt's bus thereupon departed for Ardlnore.
Whitt changed the tire on Morris' bus and returned with the bus to
Oklahoma City. It is undisputed that it took 15 to 20 minues to
transfer Morris' passengers and baggage, and that it took Whitt, as he
testified, around 45 minutes to ,change the flat tire.
The respondent contends, that' Morris' unauthorized exchange of
busses subjected it to a penalty,of $11.60 for the use of a bus other
than the type specified in its contract with the Dixie Motor Coach on
the round trip from Ardmore to Dallas, a distance of 232 miles. The
.contract provided for joint operation of equipment from Oklahoma
City to Ardmore, the respondent's route, and from Ardmore to Dallas,
the route of the Dixie Motor Coach Corp.; that each party would fur-
nish-"not less than three 37-passenger, latest type, air-conditioned
busses, 'either yellow coaches or A. C. F. busses" for this operation;
and that for substitution of a bus "of less seating capacity or a bus
with front-end type engine, or a bus that is not air-conditioned," a
5-cent penalty shall be paid by the party making such substitution for
each mile the unauthorized bus is operated over the route of the other
party. The bus originally operated by Morris and returned to Okla-
31 Whitt claimed that as driver of the double, he was obliged to take orders from Morris
who was in charge of the run, but admitted lie h'sd expressed no objection to Morris' sug-
gestion.
, , ;OKLAHOMA TRANSPORTATION COMPANY 1231
homa City conformed to the contract specifications; neither of the
busses on the second or third section conformed to the contract require-
ments.
On April 12 or 13, according to Morris' testimony, which the Trial
Examiner credited, as we do, Morris reported the above occurrence to
Kenneth Morey'20 the respondent's assistant superintendent,' from
whom Morris learned for the first time of the penalty to which the
respondent would be subjected for his substitution of busses.21 Shortly
thereafter, Horne called Morris into his office to discuss the incident
with him and advised him that he would be assessed 25 demerits, or
in lieu of the demerits, he might pay the penalty suffered by the
respondent .22 Morris replied that since he was not guilty of any irreg-
ularity, he would not make any choice in the matter and,that it was up
to Horne to make the decision, if any were to be made. Several days
later Horne had another talk with Morris and advised him that
although he disliked marring Morris' perfect record, he had assessed
him with 25 demerits. , Horne's explanation that he imposed the
demerits because Morris afforded him no alternative, did not impress
the Trial Examiner, nor do we find it persuasive, since as Morris'
superior- he needed no approval from Morris as to any action he
might take.
The respondent claims that in penalizing Morris it followed its
,practice of imposing demerits for violations of any of its rules.
Under this system, 60 demerits require automatic discharge. Except
for certain types of serious offenses, i. e., a rear-end collision or
pulling off the road, hitting a -culvert and turning over, for which a
penalty of 30 demerits is prescribed, the imposition of demerits is
entirely within the respondent's, discretion. The offense with which
Morris was charged was, admittedly, not covered by any previously
announced rule of the respondent, nor was the penalty therefor fixed.
However, the record discloses that for an unauthorized exchange of
busses, the respondent, according to Horne, has imposed 10 demerits
although there is also undenied evidence in the record that drivers
Also referred to-in the record as Kenneth Murray
'21 According to the uncontradicted testimony of Morris , the respondent had never in-
formed Moriis of the penalty which would result from failure to use an authorized bus on
this run Although Whitt, a driver of 6 mouths experience with the respondent, claimed
he knew of this penalty , he admitted that he had' ieceived no official notice in connection
therewith from the respondent , but that he had heard of it from the other drivers
22 Horne had been previously informed by the tire man in the -respondent 's shop at
Oklahoma City, on the day after the occurrence . that Whitt, after changing the flat tire,
had returned Morris' bus to Oklahoma City Horne s testimony that on the day he received
this information, apparently April 13, he also received a written report from Whitt describ-
ing the details of the incident, is in conflict with Whitt' s report which is dated April 16,
although from Whitt's testimony it would appear that he wrote out his report on April 13,
"while it was clear in [ his] mind ," and left it for ,Horne in the latter's absence It is
further significant that Whitt allegedly made this report, which was of ' considerable length
and detail , without request h om Horne, who admitted that lie requested Morus and Walker
to submit reports covering the incident.
1232 DECISIONS OF NATIOI1AL LABOR RELATIONS 'BOARD
have exchanged' busses without permission'for their own accommoda=
tion, and that the respondent has not reprimanded or imposed de-
merits therefor. It is undisputed, as Morris testified, that in the
absence of specific rules drivers are instructed and the nature of their
'work requires that they exercise iiidependent judgment. Inasmuch
as Morris did not commit a deliberate violation'of any rule and 'at
most, may be charged with an error of judgment, and in ' view of
Morris' 12 years of'service without a demerit, and the fact that fewer
demerits'or none at all have been imposed for similar offenses, even
though deliberate, we conclude that the respondent would not have
imposed the `drastic penalty of 25 demerits merely for the exchange
of busses. Our conclusion is strengthened by the fact that it appears,
aside from Morris' exchange of busses,` that the respondent itself
violated the contract provisions.'-'
In view of the resondent's knowledge ,of Morris' union' activities
in which he alone, among all of the drivers of the respondent, so far
'as appears from the record, persisted after the discharge of Fitzgerald
and Lang, the respondent's anti-union attitude and discrimination
against Fitzgerald and Lang, and its failure to justify the imposition
of demerits as reasonably consistent with the offense or in conformity
with customary practice, we are convinced, and find, as did the Trial
Examiner, that the respondent would not have inflicted this 25-demerit
penalty upon Morris but for his union membership and activity. We
further find that by thus -penalizing Morris, the respondent discrim-
inated in regard to his hire, and tenure of employment, thereby
discouraging membership in the Union, and interfering with, re-
straining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OFTHE 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 de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and.
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair
labor practices, we shall order it to cease and desist therefrom and
23 Although the i espondent was not subiect to the 5-cent-a-mile penalty unless the busses
were driven beyond Aidmoie. the contract as set forth above, clearly provided for the use
of a, specified type of bus, for the entire route As, previously, stated, the respondent had
sent out busses on the second and third sections which did not conform to the contract
specifications.
OKLAHOMA TRANSPORTATION COMPANY 1233
to take certain affirmative action designated to effectuate the policies
of the Act. `
It has also been found that the respondent discharged Robert Fitz-
gerald and Dee Lang, and imposed 25 demerits upon the work record
'of Frank Morris for the reason that they joined and assisted the Union,
and engaged in concerted activities for the purpose of collective bar-
gaining and other mutual aid and protection. We shall, therefore,
order that the respondent offer Fitzgerald and Lang immediate and
full reinstatement to their former or substantially equivalent positions
and that the respondent remove immediately from the work record of
Morris, the 25 demerits imposed by the respondent. We-shall further
order that the respondent make Fitzgerald and Lang whole for any
loss of pay they may have suffered by reason of their discharges by
payment to each of them of a sum of money equal to the amount which
he normally would have earned as wages from the date of his discharge
to the date of the respondent's offer of reinstatement, less his net
earnings,24 if any, during such period.
Upon the basis of the above findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Brotherhood of Railroad Trainmen is a labor organization, with-
in the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
3. By discriminating in regard to the ,hire and tenure of employ-
ment of Robert Fitzgerald, Dee Lang, and Frank Morris, thereby
discouraging membership in Brotherhood of Railroad Trainmen, the
respondent has engaged and is engaging in unfair labor- practices,
within the'meaning of Section 8 (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
u 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 else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590. 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 Repnblw Steel Corporation v N L R B, 311 U. S 7
504086-43-vol 46-78
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the•National Labor Relations Board hereby orders that the respondent,
Oklahoma Transportation Company, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Brotherhood of Railroad Train-
men, or any other labor organization of its employees, by discharging
any of its employees or by imposing demerits on their work records, or
in any other manner discriminating in regard to their hire and tenure
of employment;
(b)' In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to-form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the 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 Robert Fitzgerald and Dee Lang immediate and full
reinstatement-to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges;
(b) Make Robert Fitzgerald and Dee Lang whole for any loss.
of earnings resulting from the respondent's discrimination against
them, by payment to, each of them of a sum of money equal to that
which he normally would have earned as wages from the date of his
discharge to the date of the respondent's offer of reinstatement, less
1-i is net earnings during said period;
(c) Remove the 25 demerits from the work record of Frank
Morris ;
(d) Post immediately in conspicuous places in its general offices
and place of business at 410 Noble Street, Oklahoma City, Oklahoma,
and maintain for a period of at least sixty (60) consecutive days
from the date of posting, notices to its employees stating (1) that the
respondent will not engage' in the conduct from which it is ordered
to cease and desist in paragraphs 1 (a) and (b) of this Order; (2)
that the respondent will take the affirmative action set forth in para-
graplis 2 (a), (b), and (c) of this Order; and (3) that the respond-
ent's . employees are free to become or remain members of
Brotherhood of Railroad Trainmen and that the respondent will not
discriminate against any employees because of membership in or
activity on behalf of that organization;.
(e) 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.