Oklahoma Transportation Co.

National Labor Relations Board - Board Decisions

Jun 29, 1943

50 N.L.R.B. 907 (N.L.R.B. 1943)

i
In the'Mattei_ of OKLAHOMA TRANSPORTATION COMPANY and BROTHER-
HOOD OF RAILROAD TRAINMEN
Case No. C-2560.-Decided June 29, 1943
DECISION
AND
ORDER
On March 25, 1943, the, Trial Examiner issued his Intermediate Re-
port 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 copy of the Intermediate Report
attached hereto. Thereafter, the respondent filed exceptions to the
Intermediate Report and a brief in support,of its exceptions. The
respondent requested permission to present oral argument before the
Board. Permission was granted, but before the date set, the respond-
ent withdrew its request and on the consent of the other parties, oral
argument was, canceled. The Board `has reviewed the rulings made
by the Trial Examiner at the hearing and in his Intermediate Report
and finds that no prejudicial error was committed. The ,Board has
considered the Intermediate Report, the respondent's exceptions and
brief, and the entire record in the case and-hereby affirms the rulings'
and adopts the findings, conclusions and 'recommendations' made' 'by
the-Trial Examiner insofar as they are consistent with the'findings
,set out below.
We. agree with' the conclusion of the Trial Examiner that_J. P. Rog-
ers was discharged because of his membership in and activities on
behalf of the•Uniont, and because he'had testified against the respond-
ent in the prior case, rather than because of his failure properly to
perform the duties incident to' his employment. ' '
In a prior proceeding against the respondent' we found that the
actions there set forth "establish a pattern of union- hostility on the
part of the respondent and manifest a design to discourage member-
ship in the Union. These facts make plain a course-of conduct cal-
'Matter of Oklahoma Transportatton Company , etc, Case No. C-2366, 46 N L.' R. B.
1214.
50 N. L. R. B., No. 132.
°
907
1908 DEC'I'SIONS OF NAfFIO'NAL LABOR RE'I^ATIONSI BOARD
culated to interfere with and destroy employee self-organization." 2
Only 2 weeks elapsed between the hearing in the prior proceeding, at
which Rogers testified, and his own discharge. The respondent's-
treatment of Rogers demonstrates that it did not abandon its hostility
toward union organization after the hearing in the first case, but on
the contrary, that it took advantage of Rogers' testimony to continue
its'policy of discouraging membership in the Union and to penalize
Rogers for testifying in that case. -
Rogers' testimony in the first case to the effect that lie and' other
drivers had turned in late trip reports without discipline or penalty,
excepting cautionary letters, was prejudicial to the respondent and
contributed to the Board's finding that the respondent's contention
-that Fitzgerald was discharged; for filing late trip reports rather than
for union activity, was only a pretext. Rogers' testimony further dis,
closed his own union membership. The respondent's vice president,
Robert Hill, Who had heard Rogers' testimony, immediately began
an investigation of Rogers' record in filing reports and, according to
Hill's' own testimony, found that the delays were excusable. Never-
theless, when Hill was thereafter advised by the auditor on September
1; 1942, that Rogers had turned in another batch of late reports,, Hill
immediately issued an order "grounding" Rogers. On the same ,4 y,,
Hill wrote a 'letter to Horne, superintendent of drivers, in which he
stated :
I-can see no excuse for his '[Rogers'] refusal to turn in ' hisre-
ports on time, and it is my judgment that he should be dismissed
from the service.. I shall appreciate you seeing that appropriate
action is taken 'as soon as he returns to Oklahoma City:
Although the actual discharge took place on September 5, it inap-
parent that Hill's decision to discharge Rogers was made at the time
he was "grounded" 'on September 1. Not 'only was Rogers the only
driver ever disciplined in any way for filing late trip reports, although
reports were frequently filed late, 3 'but the course followed by.the re-
spondent in Rogers' case prior to the actual discharge manifests 'its
discriifiiiit.tory ritent.;. Some. of'the ,drivers•who' fileddlate¢trip.reports'
merely received cautionary letters from Hill, and others were asked
to come in to explain to Hill. None, of them was "grounded." Rog-
2 We take judicial notice of our decision and order only , in that proceeding . In its ex-
ceptions to the Trial Examiners report, and its brief , respondent failed'to - show any'sub-
stantial reason why judicial notice should -not be taken of the decision . Respondent 'has
just litigated the validity of the Board 's findings in that decision in the Circuit Court of
Appeals for the Fifth Circuit, and we note that the Court has held our findings therein to
be supported by substantial evidence , and has enforced our order . Oklahoma Transporta-
t,on Company v. N L. R B., 136 P. (2d) 42 (C. C A. 5). The respondent -has not
sought an opportunity to introduce any further evidence with respect to the findings in the
prior decision.
3 Except, significantly , for Fitzgerald , an active union dealer, in whose case the -respondent
used the same pretext of filing late reports as the basis for discharge.
OKLAHOMA TRANSPORTATION COMPANY 909
ers was not only "grounded", but was not, offered an opportunity to
explain his last batch of late reports before Hill's decision to discharge
him was made. We do not deem it necessary to determine whether
Rogers' . delay in filing reports was excusable or not. We are - con-
vinced that, in any event, Rogers would not have been discharged if
it were not for the fact that he was a member of a Union to which the
respondent was opposed, and that he had testified against the respond-
ent in the prior proceeding.
ORDER
'Upon the-basis of the above findings of fact and the entire record
in the case, and pursuant to Section 10 (c) of the National Labor
Relations Act, the National Labor Relations Board hereby orders
that the respondent, Oklahoma Transportation Company, Oklahoma
City, Oklahoma, 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 discriminat-
ing in regard to their hire or tenure of employment, or any term or
condition of employment, because of their membership in or activity
on behalf of any such labor organization;
(b) Discharging or otherwise discriminating against any employee
because he has filed charges or given testimony under the Act;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own' choosing, and to engage in
concerted activities for the purposes of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the, Act.
2. Take the following affirmative action which 'the Board finds
will, effectuate the policies of the Act; ' ^ '
(a) Offer to J. P. Rogers immediate and unconditional 'reinstate-
ment to his former or substantially equivalent employment without
prejudice to his seniority or other rights and privileges;
' (b) Make whole the said J. P. Rogers for. any loss of earnings-
incurred by reason of the respondent's discriminatory conduct by
paying to him a sum of money equal to that which he would normally
have. earned from September 1, 1942, the date when he was dis-
criminatorily retired from service, to the, date of, the respondent's
offer of reinstatement, Jess his net earnings during such period;
(c) 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
r
910 DIECTSIOINS OF NMrION'Ar LABOR RELATIONS' BOARD
the respondent will not engage in the conduct from which it is ordered
to cease and desist in paragraphs 1 (a), (b), and (c) of this Order;
(2) that it will take the affirmative action set forth in paragraphs
2 (a) and (b) of this Order;•and (3) that the respondent's employees
are.free to become or remain members of Brotherhood of Railroad
Trainmen, and that the respondent will not discriminate against any
employee because of membership in or activitiy in behalf of that
organization or because of filing charges or giving testimony under
the National Labor Relations Act;
(d) Notify the Regional Director -for the Sixteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
INTERMEDIATE REPORT
Mr. Bliss Daffan, for the Board. 11
Mueller & Mueller, by Mr: Karl H. Mueller, Fort Worth , Texas, for the
respondent.
Mr. A. J. Robinson , Wichita, Kansas, for the Union.
STATEMENT OF THE CASE
'Upon an amended charge dated January 5 , 1943, duly filed by Brotherhood of
Railroad Trainmen , 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 January 7, 1943 , against Oklahoma
Transportation Company , herein known as 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), (3), and ( 4) and Section 2 (6)
and (7 ) of the National Labor Relations Act, 49 Stat . 449, herein called the Act.
Copies of the complaint, together with notice of hearing theregn , were duly served
upon the respondent and the Union.
In respect to the unfair labor practices the complaint as amended at the hearing
alleged in•substance that on or about September 4, 1942, the respondent discharged
and- thereafter failed to-reemploy one J . P. Rogers for the reasons that he had
joined and assisted the Union and had on or about August 15, 1942, given testimony
in a proceeding known as "In the Matter of Oklahoma , Transportation ;Company,
and 'Brotherhood of Railroad Trainmen ," Case No. XVI-C--802. `
The respondent subsequently filed an answer to the complaint denying that it
had engaged in unfair labor practices and alleging affirmatively that Rogers had
been discharged for good and sufficient cause by'reason of his failure to comply
with the respondent 's necessary rules.
On January 21, 1943 , a hearing wars held pursuant to said notice at Oklahoma
City, Oklahoma , before Ralph A ..Newman , a Trial Examiner of the Board duly
designated to hold said hearing. All parties were represented and participated
in the hearing . At the close of the day's session the Trial Examiner ordered an
adjournment without date subject to further hearing upon ten ( 10) days notice
to the parties.' Hearings were subsequently held pursuant to due notice to the
11 The hearing before Trial Examiner Newman on January 21, 1943, was concerned
solely with procedural issues not involved in the subsequent hearing before the under-
signed. On the afternoon of the day preceding the hearing before Trial Examiner
Newman , Board subnenas .duces tecum had been served upon Robert Hill, the respondent's
OKLAHOMA TRANSPORTATION COMPANY 911,
parties, at Oklahoma City, Oklahoma, on February 15, 16, 17, 18, 19, and 20, 1943,
before.the undersigned, the Trial Examiner duly designated to hold said hearing.
All parties were represented and participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues was afforded to all parties. .
Upon the conclusion of the Board's case in chief, and again upon the conclusion
of the hearing, counsel for the Board moved to conform the complaint to the proof.
The motions were granted with the understanding that the scope of the motion
was deemed limited to matters of minor detail, and not intended to change the
substantive allegations of the complaint.
In the course of the' hearing before Trial Examiner Newman, counsel for the
Board moved to amend paragraph 5 of the complaint by substituting the letters
and numerals "XVI-C-802" for the letters and numerals "XVI-R-802." The
motion was granted. Counsel for the Board further moved before Trial Examiner
Newman to incorporate the record in the case before the Board entitled In the
Matter of Oklahoma Transportation Company and Brotherhood of Railroadl
Trainmen, Case No.1XVI-0-802 (Board Case No. C-2366). The motion was
denied. This motion was subsequently renewed before the undersigned. Ruling
on said motion was reserved. The motion is hereby denied, insofar as its purpose
is to incorporate the evidence introduced in the prior proceeding as part of the
evidence in the instant case for independent evaluation and findings. The under-
signed does, however, take judicial notice of the decision and order of the Board
in the prior proceeding 2 and the record upon which the same is based insofar as
the same may be relevant to the issues of this proceeding. Counsel for the Board,
as an alternative to the motion to incorporate the entire record in the prior case,
-offered in evidence the Intermediate Report and the Decision and Order of -the
Board therein. Ruling was reserved. The documents offered, marked Board
Exhibits 4 a_nd 5 for identification are hereby excluded.
Upon the conclusion of the Board's case Ins'chief, 'counsel for the respondent
moved to strike from the record certain designated Board exhibits which had been
theretofore admitted. The motion was denied. Motions of counsel for the
respondent to dismiss the complaint as a whole and specifically to strike each and
every of paragraphs 5, 6, 7, 8, 9, and 10 thereof were denied. The undersigned
of, his own motion ordered that paragraphs 6, 7, 8, 9, and 10 of the complaint be
amended by striking therefrom the verb "refused," or any tense, thereof as alleged
and ; substituting the verb "failed;" or the equivalent tense thereof. Motions of,
,counsel for the respondent to strike each and every of the paragraphs of the
complaint numbered 6, 7, 8, 9, and 10, as amended were denied. The motions to
`strike certain exhibits, to dismiss the complaint as a whole, and to strike each and,
every of- the paragraphs numbered 5, 6, 7, 8, 9, and 10, thereof, were= made by
counsel for the respondent at the conclusion of the hearing. The undersigned
reserved rulings on said motions and the same are hereinafter disposed of.
At the conclusion of the testimony, the parties were afforded an opportunity
for oral argument before the undersigned, which was waived. The parties were
further afforded an opportunity to file - briefs with the undersigned. Counsel
for the Board subsequently filed a brief.
vice-president and general manager, and Harold Wilson, its rate clerk and ticket pricer,
requiring the attendance of the witnesses and the production of certain books and docu-
ments. At the opening of the hearing, Hill and Wilson were successively called to the
stand by Board's counsel and requested to produce the documentary evidence called for
by the subpenas. Both refused to comply on advice of counsel on grounds stated. On
the statement of Board's counsel that he was unable to proceed with the hearing until the
respondent had complied with the mandate of the subpenas, the Trial Examiner ordered an
adjournment of the hearing subject 'to resumption' upon ten (10) days notice.
2 46 N . L. R. B. 1214. 1
912 DECISIONS OF NATIONAL LABOR R'ET.ATIONS{ BOARD
Under date of March 8, 1943, the undersigned issued an order making certain
corrections in the Official Report of Proceedings which was served on, all parties
Upon the entire record in the case and from his observation, of the witnesses
the undersigned makes the following :
FINDINGS OF FACT
I THE P.ESPONDIINT AND ITS BUSINESS
The respondent is a corporation organized under the laws of the State of
Oklahoma, having its home office and principal place of business in Oklahoma
City in said State. It is engaged in the business of transportation of passengers,
property, and United States mail by motor carrier for hire. The respondent
operates over regularly scheduled routes both between points lying wholly within
the State of Oklahoma and between points within the State of Oklahoma and
points within the States of Arkansas and Texas. , At various of its terminals
within the State of Oklahoma and the States of Arkansas and Texas the respon-
dent's lines connect with the lines of other motor carriers, doing interstate
business. The respondent employs ,191 individuals of whom 75 are d rivers. The
respondent operates a fleet of 65 buses, all of which were purchased, at points
outside the State of Oklahoma. The respondent operates as a motor carrier
under Interstate Commerce Commission Docket No. 460 pursuant to the Motor
Carrier Act of 1935 and transports United States Mail cinder contract with the
Post Office Department. The respondent admits that it is engaged in commerce
within the meaning of the Act e
II. THE IORGANIZATION INVOLVED
Brotherhood of Railroad Trainmen is a labor organization admitting to-mem-
bership bus drivers in the employ o _the respondent.`
III. THE -UNFAIR LABOR PRACTICES
A. The issue
,The 1 one • issue in this, proceeding .is ^wliether the respondent, 'on or about,
September 4, 1942; discharged J. I'. Rogers because of his membership in, and
activities :on behalf of • the Union, ' and because he gave, testimony' in a former
Board proceeding Ito -which the respondent was a party ; or whether Rogers was
discharged- because: of his failure properly, to, perform the duties incident to his
employment. ' • , .
B. Events leading up to and culminating in Rogers' discharge
Rogers was 'flit employed' by^ the respondent on or `about December 6, 1940.
After a short period of training as a member of the gaiage crew at Oklahoma
City and as a'student driver. he was assigned'as a regular-driver to a run
between Oklahoma City and' Holdenville. Shortly 'before his discharge' he was
demoted to the position of No. 1 driver on, the "extra" board at' Oklahoma
City 6 and was so employed at the time of his discharge. •
Unlike the regular drivers, drivers on the extra board are not assigned to
specific, scheduled runs but are assigned in approximate rotation to buses put
in, service to take care of, passenger, overloads on regular schedules and also
I The above findings are, based on a stipulation o'f the parties.
The above finding is based on a stipulation of the parties.
Rogers' demotion was the result of the operation of the respondent's seniority rules and
raises no ,issue in this proceeding.
OKLAHOMA TRANSPORTATION COMPANY 913
as drivers for unscheduled "specials," or chartered buses. Occasionally they
serve as relief drivers a As they come on duty only on special assignment they
do not report for duty at regular hours.
Any driver operating a scheduled bus covers the entire route from starting
point to terminus of anscheduled run. When "doubling," the extra driver fol-
lows the regular bus only so far as may be necessary to transfer his passengers
to the regular bus. This sometimes involves his completing the entire run.
At whatever point he is released, he is subject to further orders, as, for instance,
to return with his bus to his starting point, to continue "doubling" on^some
other route, to drive his bus out-of-service (i. e. carrying no passengers) to some
other point for special assignment or to surrender his bits and ride with some
other driver to a designated point for other duty from that point.
Each assignment carried out by a bus driver constitutes a unit "trip." In
the case of, a regular driver, operating a scheduled bus, his route from starting
point to terminus constitutes one "trip." The return, schedule constitutes
another trip. An extra driver may make an indefinite number of trips between
the time he leaves his starting point 'and the time he returns to it depending
on the number of-specific assignments he receives in the interim.
Every driver, whether on regular or "extra" duty, is required to make out a
separate trip report for each trip. Under general instructions this is 'to be
made out immediately upon the completion of the trip and before he goes off
duty and his duties relating to such trip are not completed until this is done.
Drivers operating out of Oklahoma City are required to turn in their reports
as soon as they return to that point. Some of the respondent's, regular routes
(lid not include Oklahoma City and other terminal stations were designated by
the respondent as points at which drivers could, under given conditions, turn
in their reports, the agents at such stations being thereafter responsible for
forwarding such reports to the head office.
In making out his trip report the driver first fills out a "passenger way bill"
on forms provided showing the name of the driver, bus number, run number,
starting point and destination, mileage, starting time and date, arrival time
and date, scheduled starting and arrival-tines and dates, character of service
(i.` e. whether regular run, double, charter, deadhead, etc.,) cash fares col-
lected (itemized iis to receipt' number, starting point and destination, amount
of fare and the federal and state tax thereon, and the number of tickets
handled subtotalled as to the starting point and destination). The way-bill
also, provides space for explanatory remarks or comments relating to the trip.
Some of the data shown on the way-bill is then transcribed on the face of a
"driver's report envelope." The driver then encloses in the envelope his pas-
senger way bill for the trip, tickets collected, cash fare voucher stubs, express
and' baggage-manifests, and any other documents relating to the trip.
The information. appearing on the face of the-report, and the tickets, cash, etc.,
enclosed in the report envelope, constitute basic data from which the respondent's
auditing department compile reports required by various governmental agencies
as well as reports reflecting the daily flow of business prepared for the use of
the executive officer.7 The importance of receiving the drivers' reports promptly
was convincingly established by the testimony as to the purposes the reports
served and by the careful follow-up system employed by the -respondent. The
1
e In general , relief drivers constitute a. special category of drivers substituteing for
regular 'drivers on scheduled runs.
7 The auditing of drivers ' reports was done by a special section of the auditing depart-
ment known as the drivers' report auditors Reference herein,to the auditors relate only
to this auditing section. At the times material to the issues in this proceeding Harold
Wilson was in charge of this section with Dale Jerome as his assistant . At the time of
the hearing,Jerome had left the respondent 's employ. '
t
914' ' IYEICTSIONIS OF NATIONAL LABOR RELATIONS BOARD
auditors keep a cheek'sheet of the regular'schedules, and when the report of a
,regular driver on any such schedule is not received promptly the auditors trace
it by personal contact with the drivers or by letter. Since the trips of the extra
,drivers are not scheduled, the auditors' first information that such trips have-
been made are derived from the reports themselves. When any such report
indicates that the driver has been dilatoryNin turning it in, the auditors write a
monitory letter to the-driver or see him personally. When the delinquency is-`
repeated, or the circumstances are exceptional, the fact is reported to Hill, the
respondent's vice president and general manager, for further action.
While the drivers' instructions, both as to making out their trip reports imme-
diately upon the completion of a trip, and turning them in promptly at a desig-
nated station, are categorical and so understood by the drivers, reports are fre-
quently late in reaching the auditors. The respondent's officials have recognized.
.that literal compliance was, in some situations, an unreasonable requirement and
also that failure to receive reports promptly did not always indicate that the
driver involved was responsible for the delay. The auditing department has no
authority to take disciplinary action: , Many cases of apparent delinquency were
never reported to Hill, indicating that a satisfactory explanation of the circum-
stances had been made to the auditors.. Even after a driver had been reported
to Hill by the auditing department Hill's general practice appears to have been
'to send the driver a warning letter or to call on him for an explanation.
There has-been a practical variance between the respondent's rule as to the
prompt filing of reports and the requirements of the auditing department in this
connection. Since under any circumstances it takes 2 days for all reports over
the whole system,to reach the head office, the day sheets reflecting the business
of'a given day have-been held open until the third day, and reports received at
the head office by the third day have, been considered as received on 'time for
auditing purposes 8
In January 1942 Rogers gave the Union a written authorization to represent
him for purposes of.collective bargaining with the respondent° In July 1942 he
applied and was accepted for membership. His union activities were limited
to occasional couver•sations with other drivers and there is no indication in the
record that they come to the attention of the respondent's officials.
8 In writing to a driver with reference to delinquent reports the auditors frequently,
stressed the importance of receiving reports within 3 days This requirement was suf-
ficient from the auditors' view point as reports received within this period were thus avail-
able for audit when a given day was being "worked," and there was in fact no system
operative in the auditing section by which prior delinquencies could be detected. Hill
testified that the detail incident to getting in reports was left to the auditors and that he
did not see any of the letters they had sent out or know until the hearing that they had
advised any of the employees that they were employing an -explicit 3-day standard-
0 In the present proceeding Rogers testified to a conversation between himself and one
of the respondent's supervisory employees held a few days after he had signed the
authorization referred to. He testified to like effect in the prior case (C-2366) and on
the basis of his testimony the Board found as follons : '
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 be 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 functioning, but that, if they did, he
imagined Cooper [the president of the respondent] 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 any of these statements.
Bowers is Coopers'. son-in-law and the respondent's traffic manager, In
charge of the sale of tickets and the making of schedules. He had supervision
over the ticket agents with authority to hire and discharge . ,
OKLAHOMA TRANSPORTATION, COMPANY 915
On June 23, 1942, Hill wrote to Rogers that the auditing department had called
his attention to the fact that two of Rogers' trip reports for June 19 were•not
received until June 24 Hill's letter continued inter elsa as follows:
holding up these reports delays our Auditing Department in posting the,
records and makes us late receiving our daily reports which are very impor-
tant at this time. I am sure your attention has been called to the fact that
your day's work is not complete until your trip reports have been made out
and sent in to the office.
Please see that it is not necessary for us to call matters of this kind to your-
attention again.
On August 15, 1942, Rogers testified as a Board witness in a proceeding before
the Board entitled, In the Matter of Oklahoma Transportation Company and
Brotherhood of Railroad Workers, Case No. XVI-C-802., The Board's com-
plaint- in that case alleged, inter alia, that on, or about January 14, 1942, the
respondent had discriinmatorily discharged one Robert Fitzgerald, a bus driver,
because of his union membership and activities. The respondent maintained-
that Fitzgerald had been discharged for negligence in filing his trip reports.-
In the course of his testimony Rogers related the conversation with Bowers,-
summarized in the Board's findings in Case No 2366 as hereinabove set out in
footnote 9, supra, as tending to show the respondent's discriminatory treatment
of Fitzgerald. Rogers further testified that. in June 1942 he had received the,
cautionary letter from Hill hereinabove described, and that subsequently on
August 4 he had filed reports covering the period August 1-4 inclusive. While-
he was not specifically interrogated as to whether he bad been reprimanded or-
otherwise disciplined, the fact that he was thereatfer continued in the respond-
ent's employ established that he had not been discharged.
At the hearing before the undersigned Hill testified and the undersigned finds,
that he was, present at the time that Rogers gave his testimony in the former-
proceeding and thereby learned for the first time that Rogers had. again been
late in turning in his reports; that upon returning to the office he made a
personal check of the trip reports to which Rogers had alluded ; and that he-
had decided that the reports showed that there were extenuating circumstances-
for the delay, and he had taken no further action."
Shortly after 10 o'clock on the morning of September 1, 1942, Rogers left
Oklahoma City doubling a scheduled bus for Fort Smith. Before leaving -he
turned in to the auditors a batch of 14 reports, covering trips which he had
made between August 26 and 31, .inclusive." Jerome took these to Hill and.
reported that they had just been turned in. Hill looked through them to see
what period of time they covered and then more closely to see what times of-
day were covered. He then called Gene Horne, the superintendent of drivers,
on the telephone and told him that Rogers had been late in turning in a number
10 Rogers'himself testified as to the reason for this accumulation of reports : '"I never -
did stop long enough to make one out . . . I was driving all the time." Hill testiled :
"I found that he had been turning pretty fast, going back out pretty soon after coming in,
he hadn't had very much time off ; and I believe I found that he had been staying at points'
over night in which there was no place to turn in trip reports. I concluded that he was
excusable on account of the amount of driving he had done during that period. 'I never
did say'anything to him about it."
11 Rogers testified that lie turned in 13 reports on September 1, and another which he
finally identified as-Respondent's Exhibit No 17, on the afternoon of August 31. The point
is not in itself material but the undersigned is satisfied that the finding as made more
probably reflects the fact. Rogers testified from memory almost 6 months after the event
and his testimony in connection with his reports at several points indicates uncertainty as
to details. The undersigned ciedit Rogers' testimony that this report was made out on,
the afternoon of August 31 before he left Oklahoma City but he had already made out-
three earlier reports which were admittedly among those turned in on September 1.
N
916 DECISIONS OF NArrIONAL LABOR RELATIONS BOARD
of reports and that he wanted to'talk to Rogers before he did any more work
driving. Horne told him that Rogers had already left Oklahoma City doubling
the Fort Smith Schedule and would probably drive all the" way to Fort Smith,
in which case it would be a day or two before he could get him back. Hill told
Horne to get in touch with Rogers and have him turn around and come back
as soon as possible. Horne told Hill that he was going to Fort Smith himself
that day but would get in touch with Rogers as instructed. Horne later made
contact by telephone with Earl Squires, the regular driver of the bus that
Rogers was doubling, at Seminole„a. scheduled stop en route to Fort Smith, and
ascertained from Squires that Rogers was still doubling with him and would
probably have to go the whole way to Fort Smith. Horne told Squires that
there was a bus doubling an incoming bus than Squires would meet between
Wewoka and Holdenville and to have Rogers exchange ruiis with the driver and
return to Oklahoma City. As the explanation for this request Horne stated
to Squires that if"he had to use Rogers all the way to Fort Smith, Rogers'
driving time for the day would exceed the legal 10-hour maximum. Squires re-
layed to Rogers-the instructions be had received from Horne and the explanation
Horne had given to him.12 Rogers continued to double with Squires until
they met the incoming schedule at Jackson Corner. At that point Rogers
swapped buses with Earl Albert, the driver of the Oklahoma City-bound double,
and returned to Oklahoma.
After leaving instructions for Rogers with Kenneth 1Glorey,'1 Horne left Okla-
homa City about one o'clock in the afternoon of September 1 for Fort Smith.
Rogers returned to Oklahoma City about 4:15 p. in., and, on reporting to the
garage, asked Morey when he would be needed again. Morey told him, "It looks
like you are going to be out of service a few days." Rogers asked him why and
Morey replied, "Well, you will have to be out until Gene [Horne] gets back fiom
Fort Smith. It's something about those reports that you turned in this morning."
Morey further advised him that it would probably be 2 or 3 clays before Horne
returned. '
In the meanwhile after Horne had left Oklahoma City, Hill wrote to him as
follows : - -
t
4
Our auditing department has reported to me that on this morning Jimmie
Rogers turned in 14 trip reports, these reports covering, all of the driving
he has done for our company from August 27 to August 31, both inclusive.
His trip reports indicate that he was off duty in Oklahoma City for more than
16 hours on August 28. , These trip reports are from 4 to 5 days being turned
in. None of these trip reports contain cash fares, as they show there was no
money collected on any of these trips and I can see no excuse for this failure
to turn them in.'4 Since that time 13 he has had 10 additional trip reports
11 Counsel for the Board emphasized in his cross-examination of Horne the fact that
Horne had talked to Squires rather than Rogers, and that the explanation he had given
for exchanging Rogers' driving assignment was spurious. It is clear from the record,
however, that the regular driver is in general charge of any drivers doubling his run and
it was therefore appropriate' that Rogers receive instructions through Squires. No
prejudicial inference may be drawn fiom Horne's failure to divulge to,Squires the real
reason for Rogers' recall to Oklahoma City.
11 While 'Morey was not specifically identified on the record, it is inferable from
numerous references to him that he was a supervisory employee connected with operations
at the garage. ,
14 Hill testified that in this and the preceding sentence reference was intended to the
four reports introduced in evidence as Respondent's Exhibits Nos. 6, 7, 8, and 9, none of
which contain any record of cash fares.
11 Hill testified that reference was here intended to the period subsequent to Rogers' 16
hour lay-off in Oklahoma City on August 28.
OKLAHOMA TRANSPORTATION COMPANY 917
which have been turned in from 1 to 3 days late, some of which did call for
cash, showing that cash fares had been collected, but there was no money
included in any of these trip reports 19 Jimmie Rogers is thoroughly familiar
with the rules and regulations under which our drivers operate, and is par-
ticularly familiar with the rules requiring him to make his trip reports and
turn them in at the completion of his runs, having had this matter called to
his attention in our letter to him dated June 23, 1942. I can see no excuse
for his,refusal to turn in his reports on time, and it is my judgment that he
should be dismissed from the service.. I shall appreciate your seeing that
appropriate action is taken as soon as he returns to Oklahoma City."
During the next 2 days (September 2 and 3 ) Rogers was busy with his own
affairs making out an application for admission to the Army Air Corps, assem-
bling the accompanying documents, and taking the necessary medical examina-
tion. On the morning of September 4, he telephoned to Horne to ask for a letter
of recommendation to 'send in with his application. Horne, who had received
Hill's letter on returning to his desk that morning, told Rogers that he had
received a letter from Hill about his late trip reports that he wanted to talk to
him about first. Rogers went to see Horne that afternoon at the garage and asked
him what was the trouble. Horne told him that he had turned in a lot of late trip
reports and "it looked like he was going to have to fire" him.- Rogers told him
that for several days he had been so much "on the go" he had not had time to
make his reports out. After further discussion in the course of which Horne
read to Rogers the letter he had received from Hill and Rogers explained in
some detail the reasons for the delay Horne told him it looked to him as if Rogers
was in the wrong but that he would check the recoids himself and if they bore
out Roger's contentions he, would recommend -that Hill reverse his decision.
Horne also discussed with Rogers his request for a letter of recommendation and
suggested that if Rogers sent in a letter of resignation the letter of recommenda-
tion could show that he had resigned rather than been discharged and that this
would look better. Rogers left the garage with the understanding that he would
come back the next day and talk to Hill and Tom Cooper, the president of the
respondent.18
Horne then saw Hill and reported the substance of his interview with Rogers
and that Rogers had claimed "that he had not had time to make -out his reports
because he had been driving almost continually " Hill told Horne that in the
face of that claim he thought they should check Rogers' trip reports thoroughly
and see how much driving he had done and how much time he had had, if any,
to make out his reports. They proceeded to check Rogers' reports for the latter
part of August against the garage check-in and check-out sheets and then tabu-
lated by dates the amount of time he head spent in driving and the amount of
19 Rogers testified that he had run out of funds during tins period and used the cash
fares collected to cover reimbursable expenses and that at the time his reports were turned
in on September 1 he had not received reimbursement but did so on returning to Oklahoma
City that night and at once completed his settlement with the auditors Hill testified that
Rogers' failure to include his cash receipts at the time of filing his reports was not a
factor in his discharge.
11 Hill testified as to the reason for his wilting this letter, "Mr Horne informed me
during the conversation that lie was leaving the city and would not be back for 2 or 3 days
hnd I wrote him th& lettei so that he would have it before him immediately upon his
return to the office "
I8 The above findings are based on the testimony of Horne and Rogers which is not in
conflict on the facts as found.
536105-44-vol 50-59
f
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'time he was off during the period'in question.10 The garage records 'indicate that
Rogers had made two trips on August 26 on which no reports had yet been turned
in" . At the conclusion of their analysis of the records Hill told Horne that he
-could see no reason for changing his opinion as to Rogers' discharge. Horne
then told Hill that Rogers wanted to talk to him and Cooper the following morn-
'ing to which Hill consented. --
When Rogers came to the garage' next morning he brought with him 3 trip
ireports covering his driving assignments 'for September 1, which lie turned in
to the auditors. He then proceeded. with Horne to Cooper's office where Hill
joined them and Rogers explained the circumstances responsible for the delay"
in ,turning in his reports. During the conference it developed that his reports
for September 1 had not been filed until that morning and Cooper wanted to
know the reason. Rogers explained that he had been busy trying to get into
the Air Corps and was waiting for Horne to return. Rogers was further
advised that they had been unable to locate two reports for trips he had made
on August, 26 He said he was sure these had been turned in but agreed to
make a search for them At the conclusion of the conference Cooper upheld
Hill's decision that Rogers should be discharged' However, Hill told Rogers
that they would accept a letter of resignation in lieu of discharge and give
him a letter of recommendation showing that he had resigned. Rogers said he
would think it over but took no further action in the matter. Later that day
Rogers located the missing reports for August 26 which he had previously made
out but had overlooked among the other contents of his driver's kit He turned
these in to the office that afternoon.2'
An analysis of Rogers' reports turned in September 1, shows the following:
Time off
Hrs. Min.
Aug. 27 , left Wewoka 1. 05 p in., art Okla City,3. 20 p . m_______ 4 45
left Okla City 8: 05 p in ., arr Seminole 10: 03 p m ______ 1 47
left Seminole 11: 50 p. m., arr. Holdenville 12: 40 a. m_________ 5
Aug 28, left Holdenville 12: 45 p. in, arr. Okla. City 3: 20 a m___ 16
left Okla. City_8 : 05 p. in, arr. Wewoka 10: 30 p m_____ 16
15
5
Aug. 29, left Wewoka 2: 35 p. in., arr. Okla . City 4: 50 p. m_____________ 30
left Okla . City, 8: 20 p. in ., arr Fort Smith 1: 05 p. m___ 12 20
Aug 30, left Fort Smith 1: 25 p. in., arr Poteau 2: 10 p. m__ ____________ 10
left Poteau 2: 20 p . in , arr. Spiro 2: 55 p. m___________________ 10
left Spiro 3: 05 p in , arr. Okla. City 10: 50 p. in________ 8 40
19 This tabulation was introduced in evidence as Respondent's Exhibit No. 26.
Rogers testified that only'one-report for August 26 was missing, but'the record indi-
cates the-contrary. Rogers , first testified that this covered "the trip from Oklahoma City
to Wewoka on the evening of the 26th" On cross-exaiinnation he recalled that the trip
was in two stages, first from Oklahoma City to Seminole and then from Seminole to
Wewoka, but testified, "However I don't believe though that I made two reports on that.
I think that was considered a double to Wewoka " When shown Respondent's Exhibits
Nos 4 and 5, however, he recognized his error and identified them as the reports covering
the two stages of the trip. He had no specific recollection of when or where either repoit
had been turned in prior to September 5, but "imagined" that it had been turned in on the
following morning at Oklahonia'City because that was what he was supposed to do As
against Rogers' vague recollection on the point, Horne testified that the check of the
records made on September 4 showed that 2 reports were missing.
21 The findings of the last two paragraphs are based on testimony of Rogers, Horne, Hill,
and Cooper which is not in conflict with respect to the facts as found except that Cooper
had no recollection of Hill's admitted offer to accept a letter of resignation from Rogers
and Rogers ' testimony with reference to the missing reports reiterates his claim that only
one report was missing (see footnote 20, supra ), and contains other incidental variances in
the same connection.
OKLAHOMA TRANSPORTATION COMPANY 919
Time off
Hrs. Min.I
Aug. 31, left Okla. City 7: 30 p. m, arr. Lawton Junction 12:45
i. m----------------------------------------------------- 8
left Lawton Junction 10. 03 a. in., arr. Okla. City 12: 45
p. m-------------------------------------------- 2 35
p• m------------------- ------------------- 2 35
left Okla. City 3:20 p. in., arr. Fort Sill 5: 50 p. m-------------- 10
left Fort Sill 6: 00 p. in, arr. Lawton 6: 15 p. m--------
The time shown as "Time off" is based on actual arrival and departure time
and does not reflect the time that Rogers in fact had at his own disposal. When
doubling a scheduled bus starting from a terminal station he had to report at
the garage at least half an hour before the scheduled starting time. On arrival
he had at times to clear his baggage and express manifests with the station agent
and dispose of his bus In considering how much of his time was available for
making out reports the time-for meals an'd necessary rest are additional factors.
The time necessary,to make out a report varied from a few minutes when trav-
cling deadhead, or as a passenger, or under charter, to an appreciable time when
tickets had to be sorted and cash fares listed However, the total period
elapsed between his departure from Wewoka at 1: 05 p: in. on August 27 to
his arrival at Lawton at 6: 15 p m. on August 31 is 101 hours and 10 minutes
during which period he was not driving 64 hours, 22 minutes. 52 hours 17
minutes of this "time off" period elapsed between his departure from Wewoka
on August 27 and from Fort Smith on August 30. Making all time deductions
justified by the record it is impossible to say that he had' not had reasonable time
to file all reports then due. '
This was the factual situation presented to Hill on the morning of Septem-
ber 1. At the time his decision was affirmed on September 5 it appeared that
two reports for August 26 were still missing and three reports for September
1 had been filed only that morning.
C. The Board's Contentions
Counsel for the Board contends that notwithstanding Rogers' delinquency his
discharge was discriminatory. The grounds- asserted for this contention are
as follows :
(a) Although the record shows that drivers were frequently late in submit-
ting reports, only two drivers are shown to have been disciplined for this rea-
son,-Fitzgerald, who was discharged in January, 1942, and Rogers, Fitzgerald
being an active leader in -the Union and Rogers being a member of the Union
who had given testimony prejudicial to the respondent in Case No. C-2366.
(b)1 Hill, who was primarily responsible for Rogers' discharge, had heard
Rogers testify in the earlier case, knew of his Union membership, and was so
impressed by his testimony that, he made an immediate investigation of his
record as to filing reports promptly
(c) In contrast with his treatment of other drivers reported to him as de-
linquent, Hill, without further investigation, ordered that Rogers be discharged.
(d) Hill's decision to discharge Rogers was made after consulting Wilson,
head of the auditing section, and having bt'eh told by'Wilson that Rogers had
theretofore been prompt in turning in his reports.
(e) The respondent's anti-union bias is established by the findings of the
Board in the prior case.
The record establishes that drivers' trip reports were frequently late in
reaching the auditing section and that both the auditors and Hill had sent
cautionary letters to drivers considered delinquent. The record also establishes
920 DR'OISSONS OF NAfrIONAL LABOR RELATIONS BOARD
that Fitzgerald and Rogers are the only drivers who have been disciplined be-
cause of being late in filing reports. The Board has found that the discharge
of Fitzgerald was discriminatory and this finding was based in part on the
finding that even after receiving a cautionary letter from Hill,'Rogers had been
late in turning in reports and had not been discharged. The record further
established that Hill was present when Rogers testified in the prior case and
was- sufficiently impressed by his testimony to make an investigation of Rogers'
-record. -
On the record in the present proceeding no prejudicial inference can be drawn
from the fact that Rogers was not disciplined for being late in filing reports
early in August, before he had testified in the prior case, whereas he was dis-
charged for his first offense following his appearance as a witness. The record
in this proceeding establishes that Hill knew of delinquencies only through
complaints made to him by the auditors, that the auditors had made no com-
plaint as to Rogers early in August, and that Hill's first information as to the
early August reports came from Rogers' testimony. Hill 's failure to act after
subsequent investigation, and the grounds asserted therefore, constitute evidence,
abundantly confirmed in the record, that the respondent' s rule as to filing
reports, was not iron-clad and that infractions were judged in the light of the
attendant circumstances.
That drivers have been rarely discharged for filing late reports is not neces-
sarily in itself determinative of the issue of discrimination in the absence of
proof of comparable circumstances. The Board has in the present proceeding
offered evidence as to nine other drivers shown to have been late in filing t reports
and who were not disciplined. The Fitzgerald case is stressed for purposes
of contrast in a situation where a Union leader was involved.
The Board's finding that Fitzgerald was discriminatorily discharged establishes
that fact for the purposes of this proceeding. The record establishes the fol-
lowing facts as to other employees who were reported to Hill as delinquent
and were not discharged :
Bob Chri,stison-The auditors reported to Hill that report for one trip made
July 8, 1942, was not received until July 14. Hill wrote Christison a cautionary
letter on July 14 He had had no previous complaint on Christison and has
had -none since.
Wallace Gound-The auditors reported to Hill that on July 12, 1942, they
received 11 trip reports covering the period June 27-30. Hill wrote Gound a
cautionary letter on July 3. He had had no previous complaint on Gound and
has had none since.
Earl Groves-The auditors reported to Hill that on June 9, 1942, they received
five trip reports for runs made June 4. Hill wrote Groves a cautionary letter
on June 9 He has had no further complaints 22
Clovis Byrd-The'auditors reported to Hill that-on July 2, 1942, they received
one trip report from Byrd for June 28. Hill wrote Byrd a cautionary letter on
July 3. He has had no further complaint.
Paul -Denison-Frank Morris testified that on or about September 7, 1942, he
saw Denison in the drivers' room with- 14 or 15 reports covering the period
September 2-6. Hill first heard of the incident/ through Morris' testimony at
the hearing.
Frank Bazar-The auditors reported to Hill that on April 2, 1942, they had,
received reports for March 28-31. Hill wrote Razar to come to his office and
Wilson subsequently wrote to Groves on September 8 a letter indicating that the
auditors were having further trouble with Groves and that Groves was putting the blame
for delay-on the Lawson Station. Wilson advised him that further delinquencies would
be reported to Hill, but did not again bring the matter to Hill's attention. -
OKLAHOMA TRANSPORTATION COMPANY 921'
'state the reason for the delay. Razar was driving a daily round trip between
Oklahoma City and McAlester. The delayed reports covered, the four return
trips to McAlester. Bazar reported to Hill that he had wide out and filed his
reports each day with the McAlester agent as authorized. The McAlester
terminal is a Union Station owned by the agent. Hill made a special trip to
McAlester to try to secure more efficient mail service.
Bob Cook-The auditors reported to Hill that on June 9, 1942, they had received
a report from Cook with cash enclosed covering one trip made June 5. Hill wrote
a cautionary letter to Cook on June 9. The auditors reported to Hill that on
August 4, they had received a report from Cook with cash enclosed covering one
trip made July 31. -Hill again wrote Cook a cautionary letter. Cook saw Hill and
reported that he had promptly made out and filed both reports with the agent at
Wichita Falls as authorized. The terminal at Wichita Falls is a Union Station
owned and operated by Bowen Motor Coaches.' Hill made two trips to Wichita
Falls to try to secure more prompt handling of company mail.
Frank Snow-The auditors reported to Hill that on August 4, 1942, they had
received reports with cash enclosures for two trips which Snow had made July
31. Hill wrote Snow a cautionary letter. His reports continued to come in late
and the auditors wrote to him again on August 4 but did not report him to Hill
until November 10 when they reported that two trip reports for November 3 and
two reports for November 4 had just been received. Hill wrote to Snow to come
to his office and explain. Snow reported that he had filed reports for both days
promptly with the Fort Smith agent, as authorized. The terminal at Fort Smith
was owned through a holding company by three bus lines'jointly. The station
_ manager'admitted that the company mail had not been handled promptly. Hill
testified that he was still suspicious of Snow's explanation but under the circum-
stances had to accept it.
Elmer Pace-The auditors wrote to Pace on August 24, 1942, that his reports
were coming in 6 days late, and on August 31 wrote to him again that further
delays would be reported to Hill. Pace's reports were habitually filed at Fort
Smith. The record indicates that Pace was brought to Hill's attention in connec-
tion with the service the respondent was getting at Fort Smith and not by specific
complaint on Pace. Hill went to Fort Smith personally and was advised by the,
station manager that the mail bus came through at midnight when he was off
duty and that his assistants had been sometimes negligent in seeing that the mail
was dispatched promptly.
It is clear from the above that none of the cases summarized above is compara-
ble on its facts with the Rogers' case as heieinabove reviewed and, therefore, the
respondent's 'failure to discharge any of the employees involved furnishes no
basis for an inference that its discharge of Rogers was discriminatory. There'
remains to be considered whether Hill's method of approach to the Rogers' case
was so dissimilar -as to make it exceptional. In this connection only the cases
of Cook and Snow need further consideration.
Both Cook and Snow were regular drivers on scheduled runs with over-night
lay-offs at Wichita Falls and Fort Smith,-respectively, at both of which points the
respondent was having trouble with its company mail service. Hill had written
to Cook on June 9 about a trip report that had come in late. The auditors later
reported to Hill that on August 4 another report had come in late. On both
occasions Hill wrote Cook a cautionary letter. Hill had written to Snow on
August 4 about two reports for July 31 that had arrived late. When the auditors
later advised Hill that two reports for November.3 and two reports for November
4 had come in late, I3i11 wrote to Snow to come to his office and explain.
On June 23 Hill had sent Rogers a cautionary letter about two reports received
late. On September 1, Rogers was reported by Horne to Hill as having just
922 DEiCISIONiS OF NAfTIONAL LABOR -RELATIONS BOARD ,
brought in 14 reports covering trips made between August 26-31 inclusive. Hill
first attempted to have Rogers sent to his office. On learning that Rogers had
already left Oklahoma' City and would normally be away for the next day or
two, Hill directed that he be intercepted and sent back as soon as possible, and
given -no more driving assignments until the matter was cleared up.
Later in the day, knowing that Horne would be temporarily out of the city,
Hill' wrote to Horne that in his judgment on the facts indicated Rogers should
be dismissed from the service.
Counsel for the Board interprets Hill's letter as a peremptory order that
Rogers be discharged and on this basis argues that Rogers was in fact dis-
charged on September 1. In the opinion of the undersigned, neither the
terminology of the letter, nor the factual context, support this interpretation.
The letter effected no change in Rogers' status. Horne did not receive it until
the morning of September 4. He had already, on the basis of his telephone
conversation with Hill on the morning of September 1, arranged for Rogers
to return to Oklahoma City and told Morey that Rogers was to have no more
driving assignments until further notice Hill's letter, written at a time when
neither Horne nor Rogers was available for consultation, was in the nature of
an advisory memorandum, indicating Hill's opinion of the action that'should be
taken on the basis of the facts as they appeared from the reports, and request-
ing,prompt disposition of the matter. Neither Hill nor Horne regarded it as
foreclosing further consideration Horne's interview with Rogers on the after-
noon of September 4 was directed toward getting Rogers' explanation of the
circumstances. Neither- in his telephone conversation, on the morning of Sep-
tember 4, nor in his afternoon interview with Rogers, did Horne advise Rogers _
that he was discharged. After Horne had talked to Rogers and reported tc
Hill the substance of Rogers' contention, Hill made a careful check of the
records. Although the result of this check merely confirmed his earlier opinion-
that Rogers had been delinquent and should be dismissed, his decision remained
tentative until the conference with Rogers the following morning, when the
facts against Rogers were even more prejudicial by reason of his delay in filing
his reports for September 1. At that time he was definitely discharged with
,the option to Rogers of handing in his resignation -
Taking into consideration the difference in circumstances, and on the sole
,basis of the record in this proceeding, the undersigned finds and concludes that
the differences between the course pursued by Hill in the, cases of Cook and
Snow and that in the case of Rogers do not support an inference that the latter
was discriminatory.
' The final contention of counsel for the Board, that taking into consideration
the findings of the Board in Case No. C-2366, the circumstances under which
'Rogers was discharged, as established in 'this proceeding, prove that his dis-
charge was discriminatory, is considered in the following section of this Report.
D. Summary: conclusions
On the basis of the evidence in the present proceeding, considered above,
the undersigned would find and conclude that Rogers was discharged for cause
unrelated'to his union connection and activities or to his having given testimony
in a Board proceeding. The respondent's rule that a driver must make out a
trip report at the conclusion of each trip as a part of his duties in connection
with the trip, and must turn it in. promptly at. an authorized station, is not only
self-justifying-in view of the character of the respondent's business, but clearly
understood by the respondent's employees These reports contain the basic in-
formation upon- which the auditors must depend for a number of essential
11
OKLAHOMA TRANSPORTATION COMPANY 923
purposes When the record for a given day is "closed", reports subsequently
,received covering runs that should have been included in the day's business must
be audited to the record of the first day still open on the books, so that neither
record accurately reflects the facts as to that day's business. The importance of
securing prompt reports is reflected in the constant efforts of the auditors and
the management toward this end. Rogers was familiar with the rule and had
been specifically warned by Hill in June, 1942, that he must turn in his reports
promptly His subsequent failure to do so, for a period of several consecutive
days, under circumstances that on his own account were understandable but
not clearly excusable, invited a penalty. The record fails to show a comparable(
situation in which the respondent took inconsistent action.
Tire record indicates that, after the auditors had reported a driver to Hill for
turning in reports late, they were reluctant to make a second report. With the
exception of Rogers,-the cases in which the record shows a second complaint
involved reports from stations that were gixing dilatory mail service The audi-
tors made no complaint against Rogers when he was late in turning in reports
for the first part of August and Wilson testified that his previous record had
been good It is highly probable that he would not have been reported in con-
nection with the reports he turned in on September 1, and would only have
received a warning In the meanwhile, however, Rogers had testified in the prior
case. The implication of his testimony, in its context, was that the respondent's
rule with reference to trip reports was not seriously enforced. Hill was clearly
concerned, not necessarily over the fact that Rogers had testified but over the
implications of his testimony, and called on the auditors at once for Rogers'
reports. Hill's specific interest in Rogers, and the occasion for it, were thus
brought- sharply to the auditors' attention. It is reasonable to believe that this
fact was responsible for their reporting Rogers again on September I.
The test for discriminatory treatment of an employee cannot be practically
referred, however, merely to the occasion that brings the employee to the em-
ployer's special attention. In determining whether the cause assigned for Rogers'
discharge was pretentious, the fact that he gave testimony must be considered
in weighing the plausibility of the asserted motivation, but it is not enough to
say that if Rogers had not testified he might not and probably would not have
been brought to Hill's special notice.
However, the record in the present proceeding must ,be related to the Board's
findings in Case No. C-2366, of which the undersigned takes judicial notice, and
upon which counsel for the Board relied for such proof of the respondent's dis-
criminatory attitude as might not be supplied by the record in the instant case.
In the prior case the Board found that respondent had engaged in numerous
acts of interference, restraint, and coercion which "establish a pattern of union
hostility on the part of the respondent and manifest a design to discourage mem-
bership in the Union " The Board further found that these acts "make plain a
course of conduct calculated to interfere with and destroy employee self-organi-
zation." Among these acts was the respondent's discriminatory discharge of
Robert Fitzgerald and Albert Dee Long, two employees prominent in the effort to
organize the respondent's drivers. Frank Morris, another employee active in
this effort, was discriminatorily penalized. The cause of discharge assigned by
the respondent in the case of Fitzgerald was similar to that in the-case of Rogers,
delinquency in filing his trip reports. The Board finds that this cause was pre-
tentious, basing its finding in part on other evidence establishing that the re-
spondent "was opposed to union activity by its employees", in part on the special
circumstances in the Fitzgerald case, and in part on the finding that other
employees who were delinquent in filing trip reports were not penalized
924 DEICZSIONS OF NATPIONAL LABOR R'ELATION'S BOARD
In the light of these findings the discharge of Rogers takes on a different
complexion. Irrespective of the importance of-,the respondent's rule as to the
prompt filing of trip reports, the rule was in fact frequently transgressed. Yet
the record as a whole shows that the only employees who have been penalized
for infractions were Fitzgerald, an active leader in organizing the drivers, in
which case the cause of discharge was pretentious, and Rogers, who gave testi-
mony favoring Fitzgerald and prejudicial to the respondent. Moreover, Rogers
was discharged just two weeks after he had testified. While the circumstances
attending Rogers' discharge are, standing alone, consistent with the hypothesis
of the respondent's good faith, they were not so flagrant as to overcome the pre- -
sumptions arising from a background of pronounced and active anti-union hos-
tility and discriminatory treatment of Union leaders, or to make explicable
Rogers' selection as the only employee ever discharged by the respondent for
like cause.
On the basis of the whole record and the decision of the Board in the prior
case, the undersigned therefore finds and concludes that the respondent dis-
criminatorily retired J. P. Rogers from active service on September 1, 1942,
and discriminatorily discharged him on September 5, 1942, because of his Union
membership and activities, thereby discouraging membership in the Union, and
because he gave testimony under the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set, forth in Section III above, occurring in
connection with the operations of the respondent described in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
The respondent having as hereinabove found engaged in certain unfair labor
practices affecting commerce, it is essential in order to effectuate the purposes
of the Act, that the respondent cease and desist therefrom and take affirma-
tive action designed to neutralize the effect of such practices.
The respondent having as above found interfered with, restrained and coerced
its employees in the exercise of the rights guaranteed to them in Section 7 of
the Act, and, by discrimination in, regard to hire and -tenure of employment,
discouraged membership in labor organization, and discharged and otherwise
discriminated against an employee because he had given testimony under the
Act, it will be herein recommended that the respondent cease and 'desist from
its unfair labor practices in such regard. . -
The respondent having as above found discriminated against J. P. Rogers by
retiring him from active service on September 1, 1942, and discharging him on
September 5, 1942, the normal remedy would be to require it to rectify its con-
duct in such regard by-offering him immediate and unconditional reinstatement
to his former or substantially equivalent employment and to make him whole
for any loss of earnings incurred by reason of the respondent's discriminatory
conduct.
Rogers testified that since his discharge he had obtained other employment
and would not accept reinstatement in his former position with the respondent
at the rates of pay he was receiving at the time of his discharge but would
accept reinstatement at a higher rate of pay. The record indicates that the'
,respondent has not changed its wage scale since Rogers was discharged. The
}
OKLAHOMA TRAN SPORTATION COMPANY 925
• respondent contends, that on the basis of Rogers' testimony it should in no case
be required to offer to reinstate him. While the Board has in general not
ordered the employer to offer reinstatement in cases where the record discloses
that the employee would unconditionally refuse reemployment, the undersigned
is of the opinion that in the present situation the normal remedy should be
adhered to. Rogers has not taken the position that he would on any terms,
refuse reemployment with the respondent and he has not refused any offer of
reinstatement in fact tendered. Until he is called upon to make an election
in the face of an actual rather than a hypothetical offer, there is no sound rea-
son for imposing upon him the hazard of loss of his present employment or
withholding from him the benefit of any higher wage scale the respondent may
hereafter put into effect. Certainly no element of estoppel against the Board
is involved and the policies of the Act will be more fully effectuated if the re-
spondent is required to assume full responsibility for prejudicial consequences
of its unfair labor practices until it makes a bona fide offer of reparation.
It is conceded for the purposes of the record that since his discharge Rogers
has obtained substantially equivalent employment elsewhere. In considering
the affirmative action to be required of the respondent in expunging the conse-
quences of its unfair labor practices, as found, the factor of substantially equiv-
alent employment is deemed irrelevant. Only by. requiring an unconditional
offer of reinstatement with compensatory adjustment of any loss of net earn-
ings occasioned by the respondent's discriminatory treatment can the policies
of the Act be effectuated.
It will therefore be recommended that the respondent offer to Rogers im-
mediate and unconditional reinstatement to his former or substantially equiv-
alent employment without prejudice to his seniority or other rights and priv-
ileges and make him whole for any loss of earnings incurred by reason of the
respondent's discriminatory conduct by paying to him a sum of money equal
to that which he would normally have earned from September 1, 1942, the date
when he was discriminatorily retired from service, to the date of respondent's
offer of reinstatement, less his net earnings 23 for the like period.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAw
1. Brotherhood of Railroad Trainmen is a labor organization within the
meaning of Section 2 (5) of the Act. %
2. By interfering with, restraining and coercing his employees in the exercise
of the rights guaranteed-in Section 7 of the Act, the respondent has engaged
in unfair labor practices within the meaning of Section 8 (1) of the Act.
3. By discrimination in regard to hire and tenure and other terms and con-
ditions of employment of J. P. Rogers the respondent has discouraged membership
in a labor organization and thereby engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act.
4 By discharging and otherwise discriminating against J. P. Rogers because
2313y "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, etc, 8 N . L R B 440 Monies received for work performed
upon Federal , State, county , municipal , or other work -relief projects shall be considered
as earnings. See Republic Steel Corporation v N. L R B, 311 U S 7
926 DEICTSIONIS OF NATIONAL LABOR RELATIONS BOARD
he had given testimony under the Act the respondent has-engaged in unfair
labor practices within the meaning of Section 8 (4) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law the
undersigned "recommends that Oklahoma Transportation Company, its officers,
agents, successors and assigns shall:
1. Cease and desist from :
( a) Discouraging membership in Brotherhood of Railroad Trainmen or any
other labor organization of its employees by discriminating in regard to their
hire or_ tenure of employment , or any term or condition of employment , because
of their membership in or activity on behalf of any such labor organization.
(b) Discharging or otherwise discriminating against any - employee because
he has filed charges or given testimony under the Act.
(c) In any other manner interfering with, restraining or coercing its em-
ployees in the exercise of the right to self-organization, to form,,join or assist
labor organizations , to bargain collectively through representatives of their
own choosing , and to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action ' which the undersigned finds will
effectuate the purposes of the Act :
(a) Offer to J. P. Rogers immediate and unconditional reinstatement to his
-former or substantially equivalent employment without prejudice to his ' senority
or other rights and privileges ;
(b) Make whole the said J. P. Rogers for any loss of earnings incurred by
reason of the respondent 's discriminatory conduct by paying to him a sum of
money - equal to that which he would normally . have earned from September 1,
1942, the date when he was discriminatorily retired from service , to the date of
respondent 's offer of reinstatement less his net earnings for the like period as
set forth in the Section entitled "The Remedy", above.
(c) 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 recommended to cease and desist in paragraphs 1 (a),
(b), and ( c) of these recommendations ; that it will take the affirmative action
set forth in paragraph 2 (a) and ( b) of these recommendations ; that the re-
spondent 's employees are free to become or remain members of Brotherhood
of Railroad Trainmen , and that the respondent will not discriminate against
any employee because of membership in or activity in behalf of that organi-
zation-or because of filing charges or giving testimony under the National Labor
Relations Act ; -
(d) File with the Regional Director for the Sixteenth Region on or before
ten (10 ) days from . the receipt of this Intermediate Report, a report in, writing
setting forth in detail the manner and form in which the respondent has com-
plied with the foregoing recommendations.
1 It is further recommended that unless on or before ten (10 ) days from the
receipt of this Intermediate Report the respondent notifies the said Regional
Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
OKLAHOMA TRANSPORTATION COMPANY 927
As provided , in Section 33 of Article II of the Rules and Regulations of the,
National Labor Relations Board, Series 2-as amended , effective October 28,
1942-any party may within fifteen ( 15) days from the date of the entry of
the order transferring the case to the Board , pursuant to Section 32 of Article
II of said Rules and Regulations , file with the , Board, Shoreham Building,
Washington „ D. C., an original and four copies of a statement in writing setting-
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding ( including rulings upon all motions or objections) as he
relies upon , together with the original and four copies of a brief in support
thereof . As further provided in said Section 33 , request therefor must be made
in writing to the Board within ten (10 ) days from the date of the order
transferring the case to the Board.
i WALTER WILBUR,
Dated March 25, 1943.
Trial Examiner.
J