Overnite Transportation Co.

National Labor Relations Board - Board Decisions

Oct 5, 1960

129 N.L.R.B. 261 (N.L.R.B. 1960)

OVERNITE TRANSPORTATION COMPANY 261
in any other manner in regard to his hire or tenure of employment
or any term or condition of employment for such nonmembership,
except as authorized by Section 8(a) (3) of the Act, as modified
,by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed in Section 7 of the Act.
WE WILL jointly and severally with the above-named Union
make George Fabian whole for any loss of money he may have
suffered as a result of the discrimination against him.
F. J. BURNS DRAYING, INC.,
Company.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
-Overnite Transportation Company and International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Local Union No. 55
Overnite Transportation Company and General Drivers, Ware-
housemen and Helpers Local Union No. 509
•Overnite Transportation Company and Robert L. McNeil , Harold
R. Clegg, Harley Clegg, R. W. Hutchinson , John A. McClure,
Walter T . McClure, Wayne A. McClure, and Clyde A. Stamey.
Cases Nos. 11-CA-1327, 11-CA-1317, 11-CA-1318, 11-CA-1319,
11-CA-13f20,11-CA-1373, 11-CA-1382, 11-CA-1383, 11-CA-1396,
11-CA-1397, 11-CA-1398, 11-CA-1399, and 11-C-4-1400. Octo-
ber 5, 1960
DECISION AND ORDER
On June 3, 1960, Trial Examiner Ralph Winkler issued his Inter-
mediate Report 1 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 Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
I The Intermediate Report contains two minor misstatements which do not affect the
Trial Examiner 's ultimate conclusions . Accordingly , we note the following corrections :
In the last sentence of the first full paragraph on p. 274 of the Intermediate Report, "Mr.
Laney heard Carter remark . . ." should read "Mrs. Laney heard Carter remark .
in the last sentence of the paragraph ending at the top of p. 277 of the Intermediate
Report "The Columbia terminal had . . .^' should read "The Charlotte terminal had .. . .
129 NLRB No. 28.
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) the Board has delegated
its powers in connection with this case to a three-member panel
[Chairman Leedom and Members^Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error has been committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions 2 and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Overnite Transportation
Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in or activities on behalf of Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Local Union No. 55 and General Drivers, Ware-
housemen and Helpers Local Union No. 509, or in any other labor
organization of its employees, by discharging, refusing to employ, or
in any other manner discriminating against employees in regard to
hire or tenure of employment or any term or condition of employment.
(b) Threatening to discharge employees and to shut down oper-
ations or to take any other reprisal because of union membership and
activities.
(c) Granting or promising to grant wage increases or any other
benefits in order to discourage union membership and activities.
(d) Coercively interrogating employees and applicants for employ-
ment concerning their own and other employees' union membership,
activities and sympathies.
(e) Instructing employees to report and inform concerning any
union activities.
(f) Making abandonment of union membership a condition of em-
ployment and preparing or offering to prepare letters of union resigna-
2 The Respondent excepted to the entire Intermediate Report on the grounds that the
Trial Examiner manifested bias against the Respondent at the hearing and in the Inter-
mediate Report and that the Trial Examiner resolved all issues in favor of the union and
none in favor of the Respondent . The Supreme Court has stated that even "total rejec-
tion of an opposed view cannot of itself impugn the integrity or competence of a trier of
facts ." IV.L.R.B. v. Pittsburgh Steamship Co., 337 U.S. 656, 659. Moreover , upon care-
ful consideration of the entire record and the Intermediate Report, we are satisfied that
the contentions of the Respondent in this regard are without merit.
8 The Respondent 's request for oral argument is denied, because, in our opinion, the
record, and the exceptions and brief, adequately set forth the positions of the parties.
OVERNITE TRANSPORTATION COMPANY 263
tion and otherwise inducing or seeking to induce employees to abandon
union membership and activities.
(g) Engaging in and indicating to employees that it has engaged
in surveillance of union meetings and other union activities.
(h) Disclosing or threatening to disclose the union membership
of employees to other employers.
(i) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local
Union No. 55 and General Drivers, Warehousemen and Helpers, Local
Union No. 509 or any other labor organization, to bargain through
representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection and to refrain from any and all such activities.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Offer the employees listed in Appendix A hereto, except as
indicated in that section of the Intermediate Report entitled "The
Remedy," immediate and full reinstatement to their former or sub-
stantially equivalent position without prejudice to their seniority and
other rights and privileges and make whole all employees listed in
Appendix A for any loss of pay in the manner set forth in the section
of the Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to determine the amounts of backpay
due and the right of reinstatement under the terms of the Order.
(c) Post at all its terminals copies of the notice attached hereto
marked "Appendix B." A Copies of said notice, to be furnished by
the Regional Director for the Eleventh Region, Winston-Salem, North
Carolina, shall, after being duly signed by Respondent, be posted
immediately upon receipt thereof in conspicuous places, including
bulletin boards and all other places where notices to employees are
customarily posted. Respondent shall take reasonable steps to insure
that such notices are not altered, defaced, or covered by any other
material. Both pages of the notice must remain completely exposed,
and must be posted next to each other.
(d) Notify the aforesaid Regional Director, in writing, within 10
days from the date of the Decision and Order, what steps the Re-
spondent has taken to comply herewith.
4 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
-264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT Is FURTHER ORDERED that that part of the complaint which alleges
that Harold Clegg was constructively discharged in violation of Sec-
tion 8 (a) (3) and 8 (a) (1) of the Act, be, and it hereby is, dismissed.
IT IS FURTHER ORDERED that that portion of the complaint which
alleges that the discharge of John L. Greer constituted a violation
of Section 8(a) (4) of the Act, be, and it hereby is, dismissed.
APPENDIX A
Greenville
Norman Baldwin Joseph Finley J. B. McKittrick
Jackie Blanken John L. Greer Earl Smith
Theron Byers Charles Robinson Clarence Steading
S. L. Cassell Ford Knight Bennie Summeral
James Cheek John McCombs L. D. Thompkins
Jake Christopher William McCombs T. H. Watson
Joseph Dunn
Columbia
.John R . Calcutt William Calcutt Donald Harmon
Calvin Laney
Charlotte
Harley Clegg John McClure Wayne McClure
Ronald Hutchinson Walter McClure Clyde Stamey
Robert McNeil
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that :
WE WILL NOT discharge or refuse to employ or otherwise dis-
criminate against employees in any manner because of member-
ship in or activities on behalf of International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America,
Local Union No. 55 and General Drivers, Warehousemen and
Helpers Local Union No. 509 or any other labor organization.
WE WILL NOT threaten to discharge employees or to shut down
operations or to take any other reprisal because of union mem-
bership and activities.
WE WILL NOT threaten to discharge employees unless they re-
sign their union membership and we will not prepare or offer to
prepare letters of union resignation.
OVERNITE TRANSPORTATION COMPANY 265
WE WILL NOT give or promise to give wage increases or any
other benefits in order to discourage union membership and
activities.
WE WILL NOT interrogate employees or applicants for employ-
ment concerning their own and other employees' union member-
ship, activities, and sympathies.
WE WILL NOT instruct employees to report or inform concern-
ing any union activities.
WE WILL NOT engage in, and we will not indicate to employees
that we have engaged in, surveillance of union meetings and
activities.
WE WILL NOT threaten to disclose, and we will not disclose, the
union membership of our employees to other employers.
WE WILL reinstate and make whole the following employees for
losses of pay suffered by them as a result of the discrimination
against them :
Greenville : Norman Baldwin, Jackie Blanken, Theron Byers,
S. L. Cassell, James Cheek, Jake Christopher, Joseph Dunn, Jo-
seph Finley, John L. Greer, John McCombs, William McCombs,
J. B. McKittrick, Earl Smith, Bennie Summeral, L. D. Thomp-
kins, and T. H. Watson.
Columbia: John R. Calcutt, William Calcutt, and Calvin
Laney.
Charlotte: Harley Clegg, Robert McNeill, John McClure,
Wayne McClure, and Clyde Stamey.
WE WILL make whole the following additional employees :
Greenville: Ford Knight, Charles Robinson, and Clarence
Steading.
Columbia: Donald Harmon.
Charlotte : Ronald Hutchinson and Walter McClure.
All our employees are free to become or remain members of Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Local Union No. 55 and General Drivers, Ware-
housemen and Helpers Local Union No. 509 or any other labor organi-
zation, or to refrain from such membership.
OVERNITE TRANSPORTATION COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,.
and must not be altered, defaced, or covered by any other material,.
Both pages of this notice must at all times remain completely exposed,,
and must be posted next to one another.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon separate charges filed by International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen Helpers of America, Local Union No. 55 and General
Drivers, Warehousemen and Helpers, Local Union No. 509 (herein collectively called
the Union or the Teamsters), and by the individuals named in the caption hereof,
the General Counsel of the National Labor Relations Board issued a consolidated
complaint, dated January 2, 1959, against Overnite Transportation Company, herein
called Respondent or the Company, alleging violations of Section 8(a) (1), (3), and
(5) and Section 2(6) and (7) of the Labor-Management Relations Act, 1947,
•61 Stat. 136, herein called the Act. Respondent filed an answer denying the unfair
labor practices alleged.
Pursuant to notice, a hearing was held at Greenville and Columbia, South Carolina,
and Charlotte, North Carolina, from January 20 until February 7, 1959, before
the duly designated Trial Examiner. During the hearing a motion was granted to
withdraw and dismiss the Section 8(a) (5) portion of the complaint and a further
motion to amend the complaint was granted to add an allegation of Section 8(a) (4).
All parties were given full opportunity to examine and cross-examine witnesses,
to introduce relevant evidence, to argue orally, and to submit briefs.
Upon the entire record in the case and upon observation of the demeanor of
witnesses, ,l make the following: I
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Virginia corporation engaged in hauling freight by motor carrier
into and through various States under certificates issued by the Interstate Commerce
Commission. Respondent has terminals in various States and has a yearly income
in excess of $4,000,000. Respondent is engaged in commerce within Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local Unions 55 and 509 are labor organizations within Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
This proceeding involves Respondent's alleged conduct in connection with organiz-
ing activities of the Teamsters at three of Respondent's terminals, namely, Charlotte,
North Carolina, and Greenville and Columbia, South Carolina. The complaint,
as amended, alleges a variety of so-called 8(a)(1) conduct as well as alleging 19
independent instances of discrimination in Greenville, 4 in Columbia, and 8 in
Charlotte. Many, if not most, of the subsidiary facts are in dispute. In resolving
credibility matters I have considered all conflicting testimonies, whether or not
expressly indicated here, and I have made such resolutions upon consideration of
all conflicting versions as well as my demeanor observations of the respective at-
testants and also upon consideration of the relationship of each item of testimony
to all other testimonies and evidence.
A. M. Price is general manager of all Respondent terminals, and Lonnie Marks
is the safety and personnel director. A terminal manager is head of each terminal,
except where the terminal has an agent who then has a terminal manager as next
in command. Marks and other Respondent officials stated that Respondent's policy
was that it "opposed the Union and would fight the Union by every legal means
at its disposal." Price testified that he handles overall "dissemination" of union
information to employees and that individual terminal managers are under instruc-
tion not to discuss such matters with employees. Price testified that he addresses
the employees at each terminal at least once a year respecting Respondent's afore-
stated union policy.
I shall discuss the alleged unfair labor practices on a terminal basis. It is sug-
gested, however, that, while considering the events and individual cases of alleged
discrimination on a terminal basis, the reader also retain a bird's-eye view of the
entire proceedings. For there emerges a clear pattern of similar responses by
Respondent at all terminals under consideration here.
'The delay in this report resulted from an intervening compliance hearing respecting
Local Union 55; and I have also held up this report pending completion of another hear-
ing involving Respondent Overnite and Local Union 55 in Case No. 11-CA-1542.
OVERNITE TRANSPORTATION COMPANY 267
Greenville
Louis Watkins is the agent at the Greenville terminal, and J. W. Brown has been
terminal manager under Watkins since March 1958. Watkins holds occasional
meetings with his terminal personnel, and even before the material events in ques-
tion here he addressed them concerning unionization. Thus, in or about August
1957, Watkins 2 told -a meeting of employees that the Teamsters' Union was trying
to organize various other companies, that Respondent was opposed to such organiza-
tion and would close down before "go[ing] union"; that he, Watkins, was not
going to lose his job for such reason; that no union employee would "walk Overnite's
platform"; and that he would fire any employee talking about the Union during
working hours and that if the employees "talked union , it had better be about
Union, South Carolina" (a town about 45 miles from Greenville). Watkins testi-
fied that he has been at the Greenville terminal in a management capacity since
1954 and that since then he has told all newly hired personnel shortly after their
hire that "you are now working for a company that is non-union. It has never
been Union, and we don't intend to be Union as long as we can keep the Union out
by all legal and proper means."
The Union either began or renewed organizational efforts among the Greenville
warehousemen and drivers in June 1958; 3 it conducted its first meeting for such
purpose in a city park on June 20 and it held similar meetings at the same location
shortly afterwards. As of June 28 there were 32 warehousemen (not including
Bennie Sunimeral) and 35 drivers at the Greenville terminal. Approximately 19
of the 32 warehousemen were union members as of that date and all 19 were on
the night shift; Watkins terminated 15 of these 19 employees between June 30 and
July 8. Three of 35 drivers joined the Union by July 1 and 3 more drivers joined
afterwards; Watkins terminated 1 of these 6 union drivers on July 7, 1 on September
2, and 1 on January 30, 1959.
Watkins requested District Manager Price to speak to the employees during the
immediate period of the union organizational activities and the Greenville termina-
tions under consideration; and on July 2, Price accordingly called the employees
together during working hours and Price testified that he delivered the speech set
forth in the Appendix attached hereto. The next day, as Watkins was distributing
regular paychecks to employees, Watkins remarked to the entire employee body
when he came to a check of an employee who had just been terminated, that "This
one is no longer with us." Watkins told the employees at the time that the Union's
only interest was in collecting dues and that the Union would "crawl on their bellies
for the $5 per man."
On June 30, meanwhile, one Joe Nuckles (a day shift employee) called employee
Norman Baldwin at home and he inquired whether anyone had spoken to Baldwin
about the Union. Baldwin said that someone had, whereupon Nuckles told Baldwin
that Terminal Agent Watkins wanted Baldwin to report at the terminal as soon as
possible. Baldwin soon arrived at Watkins' office, where Watkins and Terminal
Manager Brown were present and Personnel Director Marks also was present during
part of the ensuing conversation. Watkins asked Baldwin whether he was a union
member, and Baldwin replied that he was, and Watkins then called off the names of
employees and asked Baldwin to state which ones Baldwin knew to have joined the
Union. Among the names called off by Watkins and thereupon identified as union
members by Baldwin were Theron Byers, Earl Smith, Jake Christopher, Ford Knight,
William McCombs, John McCombs, Joseph Dunn, James Cheek, L. D. Thompkins,
Clarence Steading, Clarence Middleton, J. B. McKittrick, and Thomas Watson.
Watkins wrote down this information at the time, and the conversation thus
concluded .4
At the start of the night shift later that same day (June 30), Respondent laid off
night warehousemen, Smith, Byers, Dunn, and Christopher,5 and Respondent's per-
2 Watkins denies the credible testimony to this effect. This incident is related here for
background purposes only; I predicate no unfair labor practices thereon, as it occurred
outside the Section 10(b) period.
3 Unless otherwise stated, all events at the Greenville terminal occurred in 1958.
4 Brown and Watkins gave a somewhat different version of this incident although their
testimony in effect corroborates Baldwin's credible version in some significant aspects.
Marks testified that he did not recall being present on the occasion Marks also testified
that he had no knowledge of the union membership of any of the alleged discriminatees
in this proceeding.
6 Byers had been in Respondent 's employ since July 1957, Dunn since January 1958,
and Smith and Christopher since February 1958.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sonnet records show "slack business" as the assigned reason . Brown testified that
he laid off these men because they were "sloppy" workmen, and Watkins also testified
that Byers was "too slow." Each of these employees was a union member, as
Watkins had been informed by Baldwin earlier that day, and they also had attended
union organizational meetings at the city park and otherwise had engaged in organiza-
tional activities. Respondent had hired several new dockmen a few days before;
and when Smith called this to the attention of Terminal Manager Brown when Brown
laid off Smith , Byers, and Christopher , Brown replied that Respondent had no sen-
iority policy. (Brown terminated these individuals at Watkins' orders.) Dunn, when
being terminated by Watkins that same night, inquired concerning his prospects for
being recalled; Watkins replied that "if he [Watkins] were me [Dunn] he would
look for another job."
The next day (July 1), according to Respondent's personnel records, Respondent
also terminated the following night dockmen for "slack business": Cheek, Thompkins,
Robinson, Knight, and Steading. McKittrick, also a night warehouseman, also was
terminated that same day, Respondent 's personnel records stating the reason therefor
as "Being on clock and not on the job." Each of these employees was a union
member.
Cheek had been in Respondent 's employ since February 1957. Terminal Manager
Brown terminated Cheek at Watkins' orders and the reason he gave Cheek at the
time was slack work. When Cheek protested the layoff of "one of your oldest men"
while Respondent was hiring new employees 6 Brown replied that he "hated" to
terminate a "fine" employee such as Cheek but that his [Brown's] "hands are tied"
and that he was merely following Watkins' orders.? Brown then gave Cheek a
partial salary check made out by the Greenville office manager and which check
was unlike Respondent's regular payroll checks prepared at Respondent's main office
in Richmond, and Brown told Cheek to return 2 days later for the balance of his
salary.
Knight had been in Respondent 's employ from January 1958. On the night he
was terminated, he was sent into Watkins' office. Watkins told Knight of his layoff
for "slack freight" and also paid him with a check unlike the checks theretofore
used for salary payments. As Knight was leaving, Watkins asked whether there was
"anything you [Knight] would like to say." Knight replied, "No sir," whereupon
Watkins stated, "I think there is something you should tell me." Knight repeated
that he had nothing to say, and walked out. Respondent recalled Knight on or about
January 12, 1959.
Steading was in Respondent's employ from February 1958. He, too, was sent to
Watkins on July 1, and told of his layoff. Watkins also asked Steading at the time
whether Steading had "anything to tell him [Watkins]." Steading told him, "no,"
whereupon Watkins handed Steading a check also different from previous salary
checks, and Watkins asked whether Steading was "sure" that he did not have anything
to tell Watkins. Steading returned for the balance of his salary about a week later,
and Watkins again asked whether Steading was "sure" he had nothing to tell Watkins.
According to Steading's credible testimony denied by Watkins, Steading said nothing,
and Watkins asked why Steading had joined the Union and what Steading's wife
thought about it. Watkins recalled Steading on or about January 13, 1959.
Robinson was in Respondent's employ from January 2, 1958, until his layoff by
Watkins allegedly for "slack freight." His check, drawn on a petty cash amount,
also was unlike those theretofore given him. Robinson was recalled on or about
January 12, 1959.
Thompkins had been in Respondent's employ for approximately 7 months, and
was among the employees identified to Watkins as a union member.8
-McKittrick was in Respondent's employ from August 1957 until his discharge on
July 1, 1958. First employed as a city driver, he later became a switcher and yard-
man, the latter job involving minor truck maintenance such as gassing, oiling, and
washing of equipment. Terminal Manager Brown had transferred McKittrick to
the garage job, apparently because McKittrick was unable to learn the various routes
and stops on the driving job. About a month before his discharge, Brown asked
McKittrick whether, as purportedly reported to Brown, McKittrick had been leaving
the premises a "couple of hours at a time." Brown accepted McKittrick's word at
the time that the mentioned report was untrue.
Although regularly employed on the night shift, McKittrick worked a day shift
on weekends and his Saturday reporting in time was 7 a.m., and he did punch in at
6 Respondent hired 4 dockmen on June 24-25, 3 on July 1, and 18 during the rest
of July.
7 Based on Cheek's credible testimony which Brown denied.
8 Thompkins was in the Army as of the hearing herein.
OVERNITE TRANSPORTATION COMPANY 269
that time on Saturday, June 29, McKittrick testified that he proceeded to his men-
tioned duties and that one of the mechanics told him at about 10 a.m. that Watkins
had left word that McKittrick should wash and otherwise prepare the trucks for an
inspection on Sunday. McKittrick testified that this was the first time he had heard
of such inspections on this job and that he did not know whether an inspection was
in fact made on this occasion. McKittrick testified in effect that he was constantly
on the job doing his work from the time he checked in on Saturday; at about 9 a.m.
that morning he did go to the loading dock where he discussed union matters with
an employee, the dock being located about 200 feet from McKittrick's own work area.
Watkins testified that McKittrick was not in the garage area and that he could
not find McKittrick in that area for a period of approximately 2 hours immediately
after 7 a.m. on Saturday, and he and Brown testified in effect that he instructed
Brown on Monday morning (June 30) to discharge McKittrick for such absence.
Watkins testified that he, Watkins, had not been at the terminal on Sunday, McKit-
trick having worked there that day, and that Monday was the first time he saw
Brown after the alleged Saturday incident. Brown did not see McKittrick until Tues-
day (July 1). Meanwhile, no other supervisor or other employee had mentioned to
McKittrick that Watkins had purportedly been looking for and couldn't find McKit-
trick on Saturday morning. It is recalled that McKittrick was one of the employees
concerning whose union membership Watkins had questioned Baldwin on June 30.
On July 1, Brown asked McKittrick where the latter had been on Saturday morn-
ing. McKittrick informed Brown that he had been at work and Brown thereupon
fired him. McKittrick then spoke to Watkins who told McKittrick in effect that the
latter had not been on the job on Saturday for a period of 2 or so hours and that
McKittrick should "hit the clock and get off the property."
Some weeks after his termination McKittrick and Brown discussed the possibility
of McKittrick's returning to Respondent's employ. According to McKittrick's
credible testimony denied by Brown, Brown told McKittrick that, if McKittrick did
return, he "would have to forget about the Union, they weren't going to be Union."
Bennie L. Summeral had been in Respondent's employ from January 1957 until
his discharge by Watkins on July 2, 1958. Respondent claims that Summeral was
a supervisor, as an assistant foreman on the night shift, and Watkins testified that
he discharged Summeral for soliciting employee Gary Wright to join the Union.
The same night (July 1) that Watkins called into his office and terminated other
aforementioned employees, Brown also sent Summeral to Watkins. Summeral
credibly testified that in the presence of Personnel Director Marks, Watkins asked
whether Summeral had heard anything about the Union and whether he had joined
the Union; that when Summeral replied he had joined, Watkins suggested that
Summeral consider withdrawing from the Union and advise Watkins to such effect;
and that Summeral informed Watkins that he wanted to remain a member, where-
upon Watkins directed him back to work. During this same conversation, according
to Summeral's credible testimony, Watkins also asked who had signed up Summeral
and which other employees had signed union cards. Summeral did not answer the
latter question.
Employee Gary Wright also worked as a dockman on the night shift at the time,
the shift ending at 5 a.m. After Summeral and employee Norman Baldwin had
punched out and were about to leave the terminal at the end of the shift, they saw
Wright getting out of a truck just before Wright was preparing to punch out. Bald-
win told Summeral that Wright was ready to join the Union, whereupon Summeral
approached Wright and asked him whether he wanted to join the Union and Wright
replied that he did. Baldwin then began filling out a union application blank for
Wright, and a few minutes later Baldwin and Summeral took Wright home in their
car and completed signing him up.
Watkins summoned Respondent's witness Wright to his office on or about July 2
and inquired whether Wright knew anything about "it." Wright told Watkins that
he had joined the Union at Summeral's solicitation.9 Wright testified that Summeral
had solicited him at approximately 4:15 a.m., and that Wright signed a card given
him by Summeral at the time upon Summeral's alleged statement that Wright would
lose his job unless he joined the Union. Wright and Watkins testified that Wright
related this version of the signing-up incident to Watkins on the mentioned occasion
in Watkins' office. Wright testified that Watkins told him on that occasion that
he did not have to join the Union in order to work for Respondent; Wright sent a
letter of resignation to the Union on July 3.
"The record is hereby corrected to show that Wright was called as a witness by Re-
spondent and not by the General Counsel.
,270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Watkins , it was after this alleged report from Wright that Watkins
first discussed union matters with Summeral . Denying, in effect , Summeral's afore-
stated and credible testimony , Watkins also testified that he called Summeral into
his office to ask Summeral about threatening Wright with loss of job unless Wright
signed a union card. Summeral denied the alleged threats, and Watkins fired him
that same shift . Watkins testified in effect that, without further investigation, he
accepted rank-and-file Wright 's account of the alleged threat and that he rejected
the denial of one whom Respondent now claims to be a supervisor.iO
Watson , Baldwin , Blanken , and William McCombs, each of them a union member,
were the next group of warehousemen to be terminated , on July 3. McCombs had
been with Respondent since October 1957, Watson since November 1957, and Bald-
win and Blanken since early 1958. These men had discussed the Union during
working hours with night warehouseman Robert Brown , McCombs testifying that
he had done so seven or eight times, during which they urged Brown to join the
Union. Brown 11 testified that these four men thereby interfered with his work and
he and Terminal Manager Brown testified that he thereupon reported the matter to
Terminal Manager Brown . Watkins summoned and notified the men that he was
terminating them for soliciting union membership during working hours.12
S. L. Cassell was a night dockman from February 1957 until July 8, 1958, when
Watkins purportedly discharged him for "absenteeism " At the time of his discharge,
Cassell was working part time for Respondent and part time for another local com-
pany. Cassell joined the Union at one of the mentioned organizational meetings in
June. According to Cassell, whom I find to be a trustworthy witness, Watkins sum-
moned Cassell to his (Watkins') office in or about the end of June 1958, and Person-
nel Director Marks also was present at the time. Watkins asked who had attempted
to sign up Cassell in the Union and whether it was Jake Christopher or Byers who
had done so (Respondent terminated Christopher and Byers on June 30), and Marks
remarked that Christopher will have a "good time" on Cassell 's $5 while seeking
another job. Either Marks or Watkins asked why Cassell had joined the Union.13
Shortly after this conversation, and on the day before Cassell's discharge, Watkins
summoned Cassell to the office and then told Cassell that he could not remain in
Respondent 's employ while continuing his (Cassell 's) union membership , and Wat-
kins added that Cassell knew that Watkins could lay him off for slack freight. Wat-
kins mentioned at the time that Cassell 's other part-time employer "hates the Union
as well as Overnite" and that he (Watkins) wondered what such other employer
would think about Cassell's union membership. Watkins then suggested that Cassell
write a resignation letter to the Union ; Cassell indicated his unwillingness to resign
his membership , whereupon Watkins announced that "I [ Watkins] am getting tired
of your fooling with it and I will give you until tomorrow to think it over." 14
Cassell's wife suffered a miscarriage the next day, and he took her to the hospital
for an emergency operation that same day. Cassell 's working hours with Respond-
ent were from 5 p.m. until 10 p.m. Cassell was with his wife at the hospital at the
start of his shift that day and he did not return home from the hospital until about
8:30 p.m., at which time he attempted to call Foreman L. D. Aultman at the termi-
nal to advise Aultman of his, Cassell's absence. Employee Bill Gaines answered the
telephone and told Cassell that Aultman was out at the time. Cassell called again
and spoke to Aultman about a half hour later and he informed Aultman what had
happened to his wife. Aultman told Cassell that Cassell's absence, in the circum-
stances, was "all right" and that he, Aultman, would advise Foreman Noles accord-
ingly, Noles being Cassell's supervisor.15 When Cassell reported for work on his next
shift his timecard had been removed, and Watkins mentioned to him that he had
not reported the day before. Cassell credibly testified that he thereupon began to tell
Watkins about taking his wife to the hospital and calling Aultman; however, Watkins
fired Cassell before Cassell could even complete the explanation of his absence.
John McCombs was a driver at the Greenville terminal from October 1956 until
Watkins discharged him on July 7, 1958. Respondent's personnel records show
"absenteeism" as the reason for the discharge. McCombs had been absent without
"I shall hereinafter discuss this supervisory contention.
n Brown was one of the few night dockmen not discharged.
12 All four men thereafter filed claims with the State Employment Security Commis-
sion , the claim was rejected by the Commission in each instance and none of them
appealed or otherwise protested the matter to the Commission.
13 Marks testified that he did not recall the incident and Watkins testified that he was
checking on Summeral 's activities.
14 Watkins denied this credible testimony of Cassell.
15 1 do not credit Aultman's conflicting testimony.
OVERNITE TRANSPORTATION COMPANY 271
permission on various occasions in or before 1957, and as a disciplinary measure
Watkins had taken him off Saturday work for a period. Such Saturday work, con-
sidered a desirable one, was later restored in 1957. McCombs did not report on
Saturday, June 21, 1958, because of illness; he reported the next workday (June 23),
however, and worked that week without any supervisory criticism or other comment
regarding the June 21 absence. McComb then took his regular vacation and returned
on July 7, 1958. According to McCombs' credible testimony, Watkins sent for Mc-
Combs at the start of McCombs' shift that day and he told McCombs that "we hear
you signed a union application. What do you want to do about it?' McCombs
had signed such card and he replied that he wanted to do nothing about it. Watkins
told McCombs that he (Watkins) could fire McCombs for his mentioned Saturday
absence, and McCombs agreed that he could; Watkins then said he, Watkins, could
prepare a letter withdrawing from the Union for McCombs' signature but McCombs
said he did not want such letter. Watkins thereupon informed McCombs in effect that
McCombs could remain with Respondent only if he withdrew his union application
and that McCombs should advise Watkins before leaving work that day what Mc-
Combs intended to do. Watkins changed his mind, however, before McCombs left
him on this occasion, and Watkins fired McCombs with the statement that "if anybody
asked . he [Watkins] was firing me for staying out that Saturday." 16
Joseph S. Finley was a pickup and delivery driver when discharged by Watkins
on September 2, 1958. Respondent's personnel records show "safety violations"
as the reason therefor. He had been in Respondent's employ since July 1956.
Finley was called at home after his working hours on July 1, and directed to report
to Watkins at the terminal. When Finley thereupon arrived in Watkins' office,
Personnel Director Marks also was present. Watkins asked Finley whether he had
joined the Union; Finley replied that he had not, whereupon Watkins referred to
a piece of paper as purportedly containing a list of union members and Watkins
asked why Finley's name appeared on such paper. Finley did not join the Union
until the following day, July 2. On or about July 25, according to Finley's credible
testimony, Watkins asked whether Finley had been approached by a driver in
another company's employ, who the driver was, and what the driver said to Finley.
Finley told Watkins that this other driver had inquired about the reinstatement of
the employees whom Respondent had terminated, as already mentioned here. Later
that same day (July 25) Watkins again summoned Finley and he instructed Finley
to relate to Terminal Manager Brown, who was present at the time, the conversation
Finley had had with the other driver. Watkins then asked Finley whether this
other driver had attempted to sign up Finley in the Union and Finley replied that
he (Finley) was already a member. Watkins told Finley, according to Finley's
credible account, that he had known of Finley's membership and that "I [Watkins]
have got a list from your union office . of all men that belong to the Union."
Brown stated on this occasion according to Finley's credible testimony which Brown
denied, that Respondent would "close the gates" before "go[ing] Umon" and that
Respondent "would fight the Union with everything they had and with every bit
of money they could scrape and borrow to keep the Union out." Watkins again
summoned Finley after the original Greenville charge (dated July 29) was filed in
this case, and he inquired whether Finley had given a statement to the Labor Board;
Finley replied that he had.
Finley put his truck into the terminal garage for some repair work on August 30,
1958, and he did not again operate the vehicle until September 2. When Finley
reported for work on September 3 Watkins told Finley to deliver some rush orders
to Spartanburg, this being the first occasion Finley had been assigned a Spartanburg
run. Marks, the safety and personnel director, testified that he, Marks, was driving
south from Charlotte to Atlanta that same morning and that while between Spartan-
burg and Greenville, he observed one of Respondent's trucks heading in the opposite
direction on Route 29. Marks testified that he changed directions and began follow-
ing and checking this truck Marks testified that he clocked the truck at 45 miles
an hour in a 35-mile zone following which he checked the truck for 3 miles at 55
miles an hour in a 50-mile zone. Company rules require all drivers to obey all
posted speed laws and, in no event, to exceed 50 miles an hour. Marks testified
that he thereupon stopped the truck and introduced himself and then asked the
driver his name. The driver (Finley) identified himself, and Marks testified this
was the first time he learned who was operating the truck. Marks testified that he
then inquired of Finley whether Finley knew how fast he, Finley, was traveling
19 Watkins testified that he fired McCombs for an alleged absence the Saturday immedi-
ately before McCombs' vacation, and he denied McCombs' version of the termination
conversation
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Marks testified that he "believe[d]" Finley replied he did not. Finley testified
that he told Marks that he, Finley, was going about 50 miles an hour at the time
he was stopped. Marks then told Finley, according to the testimonies of both men,
that Finley had been traveling at 45 miles an hour and 55 miles an hour in the
aforementioned zones, and Finley testified that he then told Marks that he, Finley,
did not think he had been traveling that fast. Finley testified that he did not recall
what his speed was in the 35-mile zone, but that he did not believe it was 45 miles.
Marks directed Finley to continue to Spartanburg and complete his deliveries there
and to report to Watkins upon returning to Greenville. Marks testified that he then
drove to Greenville and instructed Watkins to fire Finley under the company rule
requiring automatic dismissal for exceeding 50 miles an hour, and that he then
proceeded to Atlanta. Watkins discharged Finley when the latter returned to
Greenville.
Company policy requires governors on all trucks and Finley testified that he
believed ICC rules have a similar requirement. He had driven various trucks while
in Respondent's employ and all had operating governors on them. On Finley's
return trip from Spartanburg to Greenville, Finley tested the truck and discovered
that it performed as if it had no governor on it in that it failed to cut out above
the governed speed as, in effect, it had done before August 30. Respondent adduced
no evidence to refute a possible inference from Finley's testimony that the governor
had been tampered with during the period between August 30 and the morning of
September 2.17
John L. Greer,18 a driver at the Greenville terminal since January 1958, was
discharged by Respondent on January 30, 1959, about a week after testifying as a
witness for the General Counsel in this proceeding. The General Counsel alleges
that such discharge violated Section 8(a)(3) and (4) of the Act. Greer had re-
ceived disciplinary layoffs on two prior occasions, and he told someone on or about
January 21 that he had tried to get Respondent to fire him.
Greer had testified against Respondent in this proceeding on January 21, 1959,
during the course of which he stated, among other things, that he had joined the
Union on or about July 25, 1958. District Manager Watkins testified that he dis-
charged Greer for interfering with employee Gary Wright's work.19 Watkins testified
that Supervisor Douglas Blake reported on January 30, 1959, that Greer and Wright
had been talking that day while loading a trailer; that he, Watkins, summoned
and interrogated Wright about the matter; and that Wright informed Watkins that
Greer had begun and persisted in the conversation for several minutes during which
Greer allegedly told Wright that Wright "had better stick with the Union against
the Company. If you don't, we will all lose our jobs." Watkins further testified
that Wright had informed Watkins that Wright had wanted to get on with his work
in loading a handtruck during the mentioned conversation but that he could not do
so because Greer was in his way in the trailer and he, Wright, was unable to get by.
Wright, a Respondent witness, testified that he told Watkins that Greer had begun
the conversation about the Union in the trailer; that the conversation lasted 2 or 3
minutes; that Greer told him the men would have to stick together "on the voting"
if "we wanted the thing to go through"; that Watkins did not ask him and that he
did not tell Watkins where he and Greer were standing during the conversation;
and that he and Watkins had no discussion as to whether the Greer-Wright conversa-
tion had interfered with Wright's work. Greer's testimony is that Wright opened the
Greer-Wright conversation by asking Greer's opinion how "it is going" and that he
told Wright he did not know, but that "if it didn't go Union, we are gone. I guess
you know which way we had better vote if it comes to a vote." Greer testified that
that was the entire discussion and that neither man stopped working during the
conversation.
Watkins discharged Greer that day.
The term OSD refers in the freight business to overages, shortages, and damages,
Overages and shortages occur when freight is misdirected or when freight is properly
directed but without an accompanying bill of lading; damages refer to claims against
17 A governor cutting off at 50 miles an hour would not have any impact on alleged
speed violations in a lower rated speed zone. Also, even with a governor cutting off at
50 miles an hour, a vehicle could reach a higher speed on a downgrade
ie The stipulation executed February 18, 1959, is hereby made part of the record herein
as all parties agree The subpena, Respondent's motion of February 13, 1959, the
General Counsel's response, and the stipulation will be inserted in Respondent Exhibit file
as Respondent Exhibits Nos. 7(a), (b), (c), and (d). respectively.
19 Wright, it is recalled, was also involved in Summeral's discharge and he was one of
the few night dockmen not discharged.
OVERNITE TRANSPORTATION COMPANY 273
the carrier for breakage and the like. Overages and shortages can occur as a result
of a clerical mishap or improper loading orders from a loading supervisor or as a
result of ware housemen's failure to carry out the loading supervisor 's orders. Dam-
ages may arise from faulty loading or unloading by warehousemen ; they may also
result from negligence or blameless accidents in the operation of trucks. OSD's
represent cost factors in a trucking operation , and it is accordingly in the carrier's
interest to hold them down.
P. S. Simmons , a vice president of Respondent , has overall charge of Respondent's
cost accounting and cost analysis, and he testified that he receives daily OSD reports
from each terminal . Simmons testified that the Greenville terminal during the first
6 months of 1958 had a much higher proportion of OSD 's than did other similar
terminals and that , as a consequence of meetings on the subject with Respondent
President Cochrane and General Terminal Manager Price, Cochrane issued orders
during the first 2 weeks of June 1958 to correct the Greenville situation at once.
Price and Simmons testified that they had been discussing the Greenville OSD situa-
tion with Terminal Manager Watkins during this period which they testified became
increasingly worse. Price and Watkins testified that Price directed Watkins in
mid-June to straighten out the situation , and Watkins further testified that, also in
mid-June, he had decided which employees he would terminate in order to improve
mentioned conditions at Greenville.
M. C. Hawkins has been a dock foreman since January 1958 . Hawkins and
Terminal Manager Watkins testified in effect that Hawkins also had been com-
plaining to Watkins during the first 6 months of 1958 about the work performed
by the night dockman and that Hawkins told Watkins in June that the work had
been very poor and that remedial action would have to be taken.
Watkins testified that on or about June 1, he began making plans to replace
a number of the night crews; he also testified , as set forth above, that he made
such determination about mid-June after speaking with Price, but that he did not
decide upon the order of termination. Several times in his testimony Watkins
testified that he decided to fire the entire night crew, including some supervisors.
As indicated earlier , Terminal Manager Brown has overall terminal authority under
Agent Watkins. Brown testified that in mid-June "We decided to get rid of the entire
night crew" over the week of July 4, and the following week . Brown further testified
that Watkins selected the men for discharge and that Watkins had never discussed
with him in what order the employees would be discharged . Brown then testified
that a decision was made "to get rid of the people who were causing the misrouting
of the freight" and that he did not know who had made that decision and that he
also did not know whether such decision was made in mid -June and that no one
ever did explain to him which particular employees were responsible for OSD's.
Brown also testified , for example , that the first information he had that Byers,
Christopher , and Smith were to be discharged was the same day that he, Brown,
discharged them.
Apart from Summeral, as already indicated , there were 32 warehouse employees
as of June 28, 1958; at least 6 and no more than 12 of these 32 were on the way
shift; approximately 19 of these 32 were union members; possibly none, and no more
than 1, union member worked on the day shift; Respondent terminated 15 of these
19 union members, all night shift employees . Respondent hired 25 new warehouse
employees during the period from June 24 through July 1958.20
Columbia Terminal
The complaint alleges that Respondent discriminatorily discharged four Columbia
employees on July 8, 1958,21 namely, John R. Calcutt, William Calcutt, Donald
Harmon, and Calvin Theodore Laney. The terminal manager at Columbia is
Joseph M. Carter; Earl Roberts is Carter's immediate assistant and, as the parties
agree, a supervisor within Section 2(11) of the Act. Carter has been terminal
manager at Columbia since 1957 and he testified that when he took over that po-
sition General Manager Price informed him of Respondent's policy to "fight" the
Union "by all legal means," and Carter further testified that he advises and has
advised all newly hired employees to such effect. In February 1958, Roberts
summomed then employee Harold Odum into his office; mentioning that he had
heard rumors about a union, Roberts inquired whether Odum had heard anyone
20 The freight handled at Greenville in June was 8,000 ,000 pounds , in July it was
8,500 , 000 pounds, and in August it exceeded 8,000,000
n All events respecting the Columbia terminal occurred in 195 '8 unless otherwise indicated.
586439-61-vol. 129-19
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussing the Union and he told Odum to report immediately any "talk" Odum
might hear along those lines.
The Union began or renewed organizing the Columbia employees in or about
early July 1958, and held its first meeting in such connection on July 7, at the union
hall on Sumter Street, a main thoroughfare in Columbia. Between 7:15 and 7:30
that evening, it was still daylight at the time, a group of employees were congre-
gated outside the union hall, waiting for the meeting to begin. These employees
were John Calcutt, William Calcutt, Jimmy Starnes, Don Harmon, Calvin Laney,
and Charles Culler. John Calcutt, Harmon , and Laney credibly testified that, while
standing outside on this occasion, they saw Terminal Manager Carter and Personnel
-Director Marks drive by the meeting site on Sumter Street; 22 they further testified
that shortly afterward Carter and Marks drove by in the opposite direction and
looked directly at them. Laney's wife. had accompanied Laney that night and was
waiting for him in a car parked outside the meeting place. Mrs. Laney credibly
testified that, while the meeting was in session, Carter returned to the site and got
out of the car and peered into the building where the meeting was being held; Mr.
Laney heard Carter remark to someone with him at the time that he, Carter, recog-
nized Laney's car -and that Mrs. Laney was in the car.
At work the next day, July 8, Carter called employee Philip Ellisor 23 into his
office.24 Ellisor had attended the union meeting the night before. Carter asked
Ellisor whether he was a union member and Ellisor replied that he was. Carter told
-Ellisor in effect that he, Carter, knew who had attended the union meeting. Ellison
sent a letter of resignation to the Union later that day. This same day, Carter dis-
charged the four mentioned employees.
Carter testified that he and Roberts, his assistant , had decided to "clean house"
and get rid of undesirable employees and that they had agreed that the early part of
July would be the most opportune time to do so because business was normally
slow during such period.
John Calcutt. Carter testified that he discharged Calcutt for absenteeism and
for failing to report an accident; he further testified that a "good while" before
terminating Calcutt he had come to the conclusion that Calcutt was no good. Cal-
cutt rose from a starting weekly salary of $67.50 in February 1957 to $82.50 at his
discharge on July 8, 1958; he received his last salary increase a week or two before
his discharge. Calcutt operated a regular run to Sumter, when in or about May 1958,
he failed to report an accident with another vehicle. When the owner of the other
vehicle reported the matter to Respondent, Roberts removed Calcutt from the
Sumter run as a disciplinary measure for not reporting the accident, as required by
company rules, and he assigned -Calcutt to local driving in Columbia at the same
mate of pay. At ,Roberts' suggestion, Calcutt paid $12.50 to the other car owner
at the time in order to "keep the record down." (Carter testified that the incident
cost Respondent about $2 or $3.) Two weeks later, Roberts told Calcutt that he
needed Calcutt on the Sumter run and he accordingly reassigned Calcutt to that run
Three or four weeks later, and this preceded the union campaign , Calcutt was again
removed from the Sumter run purportedly for wasting time, and assigned to local
deliveries in Columbia. (Calcutt and another driver had stopped, on this occasion,
to get something to eat.) Calcutt was on Columbia deliveries when he was dis-
charged. Roberts had told Calcutt that Calcutt was a "little slow" on the Columbia
job but that he, Roberts, thought it was because Calcutt was not too familiar with the
city and that he, Roberts, thought Calcutt would learn it. Respondent offered no
evidence to support its "absenteeism" claim.
William Calcutt had been in Respondent's employ for a year or so , and Carter
testified that his work as a road driver was "very good up until the last month."
Carter testified that Calcutt was "always griping and agitating" during the last month,
and Carter further testified that Calcutt had once told Roberts that the men were
not being treated right, that on one or two occasions Calcutt had discussed with
several employees that the men should be receiving more pay, and that Calcutt
had told Carter that he, Calcutt, was "going to have to quit the Company because
it is always cutting my pay." Carter told Calcutt that the discharge was for " growling
to some of the other employees."
Harmon had been driving for Respondent since May 1958. Carter testified that
he discharged Harmon for not reporting an accident and for leaving his truck to
22 ,Carter and Marks deny this incident
23 Ellisor has since left Respondent's employ.
u According to Carter's testimony, Roberts had reported that some employees had joined
the Union and now desired to withdraw, whereupon these employees came to see him
about the matter.
OVERNITE TRANSPORTATION COMPANY 275
help another of Respondent's drivers load a truck without first notifying the dis-
patcher. About a month before his discharge Harmon had knocked a shingle off
a shed in backing up his truck and the shed owner told Harmon to "disregard it,
that there wasn't anything to it" and Harmon consequently did not report the matter.
Carter testified that the accident caused no damage to Respondent's truck and did not
otherwise cause Respondent any money loss except "some good will." Carter testi-
fied that the shed owner later asked him (Carter) why Carter had not done some-
thing about the matter.
Company rules require drivers to advise the dispatchers whenever they go "off
the radio" (leave the truck), even to assist another Respondent driver in loading
the other driver's truck. Employees nevertheless did, on occasion, help other
drivers without calling in, and on the day before his discharge Harmon was "off the
radio" for about 15 or 20 minutes for such purpose without notifying the terminal.
Respondent terminated Harmon on July 8, 1958, as stated above. Carter recalled
Harmon and Harmon returned to work in or about early January 1959. Harmon
was scheduled to testify, and he did testify in this proceeding on January 23, 1959.
Before going to the hearing that day, Harmon called up Roberts (Carter's assistant)
and told Roberts in effect that he (Harmon) did not know whether to go to work or
attend the hearing. Roberts did not tell Harmon that Harmon could not be excused
from work in order to appear and testify; Roberts did not say that "it would be
better for [Harmon] to- not come up here [at the hearing], it might be better for
[Harmon] to come to work." 25
Laney was discharged according to Carter, because of "domestic trouble and the
fact he [Laney] had lost interest in his job."
Laney entered Respondent's employ in July 1957, working as a warehouseman
and driver. In or about December 1957, Roberts told Laney that he wanted Laney
to advance with Respondent and to train for a dispatcher job at another terminal.
A month or so later, Laney became night foreman, which position he held for
approximately 5 weeks, at the end of which time Carter returned him to driving
because, as Carter informed Laney, he "wasnt pushing the men hard enough."
Laney and his wife had some marital difficulties, in consequence of which one
Saturday in late May or early June 1958, Laney left his wife in Columbia and went
to his parents' home in North Carolina. Laney did not work Saturdays or Sundays
and he called Carter on Monday from North Carolina. Laney told Carter that he
was not returning to Columbia and he asked Carter for a transfer to Respondent's
Charlotte terminal. Carter denied Laney's request and he told Laney to stop by to
see him should Laney return to Columbia. Mrs. Laney meanwhile spoke with
Carter that Monday and Carter told Mrs. Laney, according to her credible testimony,
that he hoped the Laneys would straighten out their problem, that Laney was a
good worker, and that he (Carter) would like to have Laney back to work. Mrs.
Laney told Carter she would appreciate his efforts in helping to patch up the domestic
situation and that she would call her husband and let Carter know what developed.
Mrs. Laney then called Laney and Laney said he would return, and Mrs. Laney
informed Carter to such effect. Laney returned on Tuesday. Mrs. Laney meanwhile
instituted nonsupport proceeding against her husband that same day or the next day,
and Laney was jailed on Wednesday pending hearing on an ancillary matter in that
action. Both Laney and Mrs. Laney spoke with Carter concerning the posting of a
bond for Laney's release and Carter said he would try to arrange such release. Carter
did arrange the release. Laney thereupon returned to his job and his wife that
same or the next day, and the Laneys have remained reconciled. Carter testified,
in effect, that he gave Laney time off on occasion to consult with -a lawyer in con-
nection with the mentioned domestic relations matter. Laney worked without
further incident until his discharge on July 8.
Charlotte Terminal
The complaint alleges that Respondent discriminatorily terminated eight Charlotte
employees, one by way of constructive discharge. All of these employees, but
Harley Clegg, were drivers. Albert Vigue has been terminal manager since July
1958; Marks, the personnel director, also has his principal office at this terminal.
Beginning in or about June 1958, the Union either organized or renewed efforts to
organize the Charlotte employees. (Unless otherwise stated, the Charlotte events
hereinafter set forth occurred in 1958.)
In July 1958, shortly after becoming terminal manager, Vigue called a meeting of
all Charlotte drivers. Stating on this occasion that he understood the Union was
25 Although not alleging this statement to be an independent violation of the Act, the
General Counsel offered this evidence as supporting the alleged discrimination.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attempting an organizational campaign, Vigue told the assembled drivers that Re-
spondent was, and always would be, opposed to the Union, that it would not tolerate
any union organization, and that it would fire any employee participating in such
activities. (Vigue did not limit this statement to working time.) Vigue further
announced that Respondent was making money, that it desired employees to progress
with it, and that Respondent would give its employees a wage increase in the near
future.28 At about this same time General Manager Price summoned employee
Harold Clegg to the office, according to Clegg's credible testimony, and he asked
whether Clegg had joined the Union. Clegg replied that he had not, although he
had in fact done so. Price told Clegg that he, Price, had heard rumors of Clegg's
union activities and that he would fire Clegg if he had certain knowledge to such
effect. Price further told Clegg that Respondent would never "stand for" a union.
Most of the alleged discriminatees signed union cards in October. That same
month, Vigue delivered a talk to approximately nine of the Charlotte drivers, during
which he complimented them on their work and a business increase over the previous
month and he announced that Respondent was accordingly giving a salary increase
to this particular group. Also in October or November, Price made a "routine"
speech to the Charlotte drivers during which he read two magazine articles critical
of the Union. Price referred to the Union as being run by "racketeers and crooks"
and he stated among other things according to his testimony, that Respondent was
opposed to the Union and would fight it with "every proper and legal means."
Harold Clegg was in Respondent's employ from 1952 until August 15, 1958. The
General Counsel alleges that Clegg was constructively discharged; Respondent claims
that he quit voluntarily. Clegg had signed a union card in or about June 1958 and
had solicited other employees to join. It has already been recounted that Price had
questioned and threatened to fire Clegg should he, Price, become satisfied that Clegg
was involved with the Union.
Clegg and another driver, one Wilson, each operated a so-called Monroe run
(although there were some operational differences between the two runs) and they
split all their commissions . Clegg testified that , after his aforementioned conversa-
tion with Price, the dispatcher (one Poplin) disproportionately distributed the Mon-
roe work by assigning substantially more work to Clegg than to Wilson who was not
a union member. On the day before taking vacation leave in August, Clegg had an
argument with Poplin arising out of an incident when his truck broke down. Clegg
and Poplin exchanged some strong words on that occasion during which Poplin
cursed at Clegg and Clegg threatened to "stomp [Poplin's] tail." Clegg told Poplin
that he, Clegg, would not return to the Monroe run after vacation and that he was
going to find another job. Clegg did return to the terminal on or about August 14,
and he reviewed with Terminal Manager Vigue his mentioned argument with Poplin;
Vigue told Clegg that Clegg "owed" Poplin an apology, and Clegg replied that it
was Poplin who should apologize. Clegg then took up the matter with Personnel
Director Marks and Clegg requested another assignment and that he be removed
from the Monroe run. Marks reminded Clegg of Clegg's dissatisfaction on other
previous assignments, and he refused Clegg's request. Clegg thereupon quit.
Respondent adduced tonnage and trip data respecting Wilson and Clegg, and it
also showed Clegg's expressed dissatisfaction on previous assignments, as mentioned
above. Considering these and all related matters, I am not satisfied that the record
preponderantly establishes Clegg's quitting as a constructive discharge.
Harley Clegg, father of Harold Clegg, was in Respondent's employ from 1953
until Marks laid him off on October 23, 1958, purportedly for lack of work. Price
told Clegg at the time that unionism had nothing to do with his termination and
that Clegg should call upon Price for assistance. Clegg had joined the Union shortly
before his termination and he had also discussed union matters with other employees.
Clegg had a combination job of dockhand and cleanup man, and Respondent has
not since hired anyone for cleanup duties. Respondent had engaged dockhands
during the months immediately preceding Clegg's layoff and as recently as 2 or 3 days
before the layoff ; Respondent also engaged part-time dockmen during that period
and after the layoff. So far as appears, Respondent did not offer any part-time work
to Clegg.
Robert McNeil, Walter McClure, John McClure, Ronald Hutchinson, and Clyde
Stamey were pickup and delivery men, and Respondent's payroll records state that
they were laid off in October and November for "lack of work." According to these
payroll records they were the only employees of their job classification who were
laid off for such reason between August 1, 1958, and January 7, 1959. (The hearing
261 do not credit Vigue's testimony that he never discussed union matters with em-
ployees and that he had no awareness of union activities.
OVERNITE TRANSPORTATION COMPANY 277
herein began on January 20, 1959.) Terminal Manager Vigue testified in effect that
he made these layoffs as well as the layoff of Harley Clegg after receiving instructions
from Respondent's main office to cut the Charlotte payroll because of a seasonal
decrease in tonnage. Respondent asserts, in effect, that there was economic justifica-
tion for laying off employees at the time and that it made its selection on an individual
basis. The record establishes that Respondent does not have a seniority policy. The
parties stipulated that, except for the last week of October, Respondent hired pickup
and delivery employees during the period from August through October; the record
further shows that at least six such drivers hired after July 1 (including two drivers
hired in October) remained in Respondent's employ at the time of the layoffs under
consideration here and were still with Respondent in February 1959. The Columbia
terminal had a record tonnage in September, and there is some indication here that
the October tonnage was even greater.
McNeil was in Respondent's employ from October 1957 until on or about October
24. He joined the Union on October 14. Several weeks before McNeil's layoff, as
stated above, Vigue gave wage increases to some drivers. McNeil did not receive
such increase, whereupon he complained to Vigue. After looking into the matter
and advising McNeil that his work was satisfactory, Vigue also gave McNeil a wage
increase 27 A week later Marks told McNeil he was "finished" because his work
and attitude were unsatisfactory. (Vigue testified that McNeil had developed a
poor attitude toward Respondent and his work.) McNeil then asked Marks about
his unsatisfactoriness in view of the fact, as he told Marks at the time, that Vigue
had given McNeil a wage increase the week before. Marks "didn't say much of
anything," according to McNeil's credible testimony, "he just kind of ducked his
head. He might have blushed a little bit. I could see he might be sort of embar-
rassed." Shortly thereafter Marks gave McNeil a termination slip stating "lack
of work."
Walter McClure was hired on September 1 and was terminated on October 25.
Vigue told McClure immediately after McClure's hire, that Respondent did not have
a union and was opposed to it. McClure joined the Union on September 30.
McClure reported as usual on his termination day; his truck was loaded, bills of
lading were prepared with his name on them, and everything was otherwise in readi-
ness for his usual run. Marks thereupon summoned McClure and advised him he
was being laid off for "lack of work." Respondent recalled McClure on January
12, 1959.
John McClure, Walter's brother, was hired by Marks on or about July 1. Marks
asked him at the time, according to McClure's credible testimony denied by Marks,
whether he was a union member and whether he knew anything about the Union.
McClure replied he was not a member, and Marks commented that Respondent paid
the same as the union wage scale but that it got along well without a union. Marks
also told McClure at the time that the job was a permanent one and that Respondent
never laid off men for slack work. McClure joined the Union early in October.
Reporting for work on October 25, and as in the case of his brother Walter, John
found his bills manifested and his truck ready to go. Marks, however, also told
John that he was being laid off for lack of work. John mentioned to Marks that
Respondent had some drivers hired after him, to which Marks replied that "their time
is coming." And when John recalled to Marks the latter's aforementioned statement
that Respondent had never laid off employees for slack work, Marks replied that
"time changed everything." An employee hired in August, took out McClure's run
that day. Vigue testified that John was selected for layoff because he had been
uncooperative in that he, in effect, had not volunteered for overtime work which
some other employees were performing but which Respondent did not require.28
Hutchinson (or Hutchison) entered Respondent's employ in March 1957 and
was terminated on October 31, 1958. He was among the group of approximately
nine drivers to whom Vigue gave a wage increase on October 17. About a week
before Hutchinson's termination, Marks summoned Hutchinson to his office and
he asked how Hutchinson was getting along; Marks stated at the time that Hutchinson
had an excellent record and that "union activity" was the only thing that would come
between Hutchinson and Respondent. Marks further stated that he understood the
Union was attempting to organize the Charlotte employees and that he, Marks,
"would not stand for such" and that, while Respondent could not ostensibly fire a
n The wage increases apparently ranged from 3 to 8 cents an hour ; McNeil was
given a 3-cent increase.
8 Respondent adduced testimony and offered to prove that it has since attempted to
recall McClure. The record shows that McClure did not receive such purported messages,
and I find that Respondent did not, in fact, advise McClure to such effect.
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man for "talk[ing] about the union at home, but they could make reasons for ter-
minating a man" because all men break "some little company rule." Marks asked
Hutchinson what his union sentiments were and whether any union representatives
had contacted him; Hutchinson replied that he and other drivers had been contacted
but that he had not joined the Union; 29 District Manager Price and one Jack Lail 30
were standing in the anteroom to Marks' office at the time. Lail approached
Hutchinson after Hutchinson left Marks' office, and he told Hutchinson that he, Lail,
and Price were satisfied "all along" that Hutchinson had nothing to do with union
activities and that he, Lail, felt that Marks also was satisfied and that Hutchinson
had nothing to worry about. Hutchinson meanwhile signed a union card that month.
A few days later, about October 26, and while Price was close by (but not within
earshot, so far as the record reveals), Lail told Hutchinson that Price had been
considering Hutchinson for a supervisor's job but that Price did not know how
Hutchinson felt about the Union; he further told Hutchinson to talk it over with
Price if Hutchinson felt he (Hutchinson) had made a "mistake" and that Price was
the kind of man who would give him another chance. Hutchinson replied that
he did not feel he had made a mistake and that he saw no reason to discuss the
matter with Price. On or about October 31, when Marks terminated Hutchinson,
Marks twice failed to answer Hutchinson's question as to whether it was a layoff or
a discharge. Marks finally said that he would recall Hutchinson if and when he
needed Hutchinson. Marks testified that Vigue told Marks to lay off Hutchinson;
and Marks testified that Hutchinson was selected for layoff because he was "poor
. in production" and Vigue testified that Hutchinson was selected for not apply-
ing himself. Marks offered to recall Hutchinson and Hutchinson rejected the offer
on or about January 1, 1959. When Marks was asked at the hearing why he had
offered to take back Hutchinson in view of Marks' earlier testimony that Hutchinson
was a poor worker, Marks replied that employees sometimes improve themselves
after a layoff. Marks testified that there was no labor shortage at the time of
Hutchinson's recall offer.
Stamey was in Respondent's employ from August 1957 until November 28, 1958.
Respondent claims that it laid off Stamey when it eliminated Stamey's run because
of slack freight. Stamey signed a union card in November. Stamey punched in
as usual on his termination day and helped load his truck. While waiting for minor
maintenance on the truck that morning, Stamey was called into Marks' office.
Marks questioned him about failing to list a particular employer on Stamey's job
application form (Stamey had submitted the application form more than a year
earlier). During this conversation, according to Stamey's credible testimony,31
Marks asked whether Stamey had belonged to the Union and whether Stamey had
known Ed Hargett while working at such earlier unlisted employment. Hargett
was business manager of Teamsters Local 93 from 1954 until April 1958 and has
been that Local's president since the latter date. Stamey replied that he had been
a union member at the time of such former employment and that he and Hargett
are "good friends." Marks' face turned "right red," according to Stamey's credible
testimony, and Marks told Stamey that he did not like Hargett or anyone "connected
with the Union," that Respondent would fight the Union as long as its money held
out and would close its doors when money ran out, that he had "no alternative
but to let me [Stamey] go," and that Respondent was in any event planning to
discontinue Stamey's run. Marks told Stamey that he, Marks, "would be kind
enough" to have Stamey's termination slip show "short work" as the reason for
layoff. Marks told Stamey that Respondent fires its drivers for two reasons,
"either having an accident or for union activities." 32 Another driver operated
Stamey's truck that day and the run was thereupon discontinued. Respondent has
since recalled Stamey to a somewhat different job.
Wayne McClure, brother of John and Walter McClure, was in Respondent's
employ as a driver from April 1958 until his discharge by Marks on December 1,
1958. Respondent claims it discharged McClure for leaving a truck unattended
in violation of company regulations and for otherwise unsatisfactory performance.
At the time of his hire, according to McClure's credible testimony denied by
Marks, Marks asked McClure what he thought about the Union, and McClure
replied that he knew nothing about unions and had never worked under one Marks
29 Marks testified that he did not recall any conversation with Hutchinson , he denies,
however that he had discussed the Union with Hutchinson
so Lail's job was "training truckdrivers" : Marks said he was an office employee
"I Marks testified that he had questioned Stamey about the application several months
before Stamey's layoff
12 Marks denies discussing the Union with Stamey
OVERNITE TRANSPORTATION COMPANY 279
told McClure on that occasion that company rules prohibited union activities
on company time. Bill Stoner was the Charlotte terminal manager at that time.
Later in the day of Marks' conversation with McClure, Stoner asked McClure
whether Marks had discussed the Union with McClure and Stoner told McClure
that Respondent "didn't have and didn't tolerate the Union." McClure signed
a union authorization card on or about October 1, 1958.
On October 30, 1958, Marks summoned McClure and told him that it had been
reported that McClure had left his truck unattended away from the terminal for
about 2 hours that day and that he had driven off in a private vehicle during that
period. Marks asked McClure whether the report was true, and Marks testified
that McClure denied the report. McClure testified in effect that he denied being
away from his truck for 2 hours and he further testified that he told Marks that
he had been away for approximately 1 hour for lunch during the noon hour and
that he had been in a private car during that period. In the circumstances, as
hereinafter discussed , I find it unnecessary to resolve this and other conflicts respect-
ing the truck incident and I shall not detail them further. Marks told McClure
at the time of the truck conversation that he had no complaints about McClure's
work and Marks testified that he told McClure that he, Marks, would take the truck
matter under consideration and that he would advise McClure what action he,
Marks, would take in such connection . During that same conversation and after
discussing the truck matter , according to McClure's credible account , Marks asked
McClure whether McClure had signed a union card. McClure replied he had not,
and Marks said he had. Marks then asked McClure to look him straight in the
eye and tell Marks that he, McClure, had not signed, which McClure did. Marks
finally told McClure to report as usual the next day but that he, Marks, would
find out whether McClure had joined the Union and that McClure could consider
himself "gone" if Marks were to learn that McClure had joined.
Marks testified that he and Vigue decided to terminate McClure for "unsatis-
factory work and leaving the truck unattended" and that he took this action on
December 1 a full month after the truck incident, on the basis of information
meanwhile given him by Vigue and some other supervisors that McClure's work
was unsatisfactory. Neither Marks nor Vigue nor any other supervisor testified
in what respects McClure had been unsatisfactory. McClure asked Marks, when
Marks discharged him, to explain the unsatisfactoriness mentioned by Marks at the
time; Marks replied that he did not know except that Jack Lail 33 had said so.
Concluding Findings
Respondent, needless to say, has a right to be opposed to the unionization of its
employees and to fight such efforts "by every legal means." That Respondent does
oppose such unionization is well documented here. It may hardly be said, however,
that Respondent's actions all bear the imprimatur of legality. Among the unlawful
conduct which I find to have violated Section 8(a) (1) at the Greenville terminal are
Terminal Agent Watkins' interrogation of Baldwin concerning his own and other
employees' union membership in the presence of Personnel Director Marks and Ter-
minal Manager Brown. Watkins' union interrogation of Steading, Brown's statement
to McKittrick that McKittrick would have to forget the Union if he returned to
Respondent's employ, Watkins' union interrogation of Cassell in Marks' presence and
Watkins' statement that Cassell would have to forego his union membership and
write a letter resigning such membership in order to remain with Respondent, Wat-
kins' union interrogation of John McComb and Watkins' threat that McComb could
not stay with Respondent unless McComb withdrew from the Union and Watkins'
statement that McComb sign a letter of union resignation to be prepared by Watkins,
and Watkins' union interrogation of Finley in Marks' presence and his giving an
impression of union surveillance and Watkins' statement to Finley respecting a shut-
down if the terminal were organized. The violations of Section 8(a)(1) at the
Columbia terminal include Supervisor Roberts' union interrogation of Odum and his
instructions that Odum report any union "talk," Terminal Manager Carter's and
Personnel Director Marks' surveillance of the union meeting, and Carter's union
interrogation of Ellisor and his statement to Ellisor that he knew who had attended
the union meeting. Respondent's similar conduct violating Section 8(a)(1) at the
Charlotte terminal includes Terminal Manager Vigue's statement to assembled
drivers that Respondent would not tolerate a union organization and would fire any
employee for participating in such activities and his statement at the time that
Respondent would give its employees a wage increase (which, in context, was a
83 See footnote 30, supra.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
promise of benefit to refrain from union membership), General Manager Price's
union interrogation of Harold Clegg and his statements to Clegg that he had heard
rumors of Clegg's union activities and that Respondent would never "stand for" a
union and that he would fire Clegg should he learn of Clegg's union activities, Person-
nel Director Marks' union interrogation of Hutchinson and his statements to
Hutchinson that only "union activity" could come between him and Hutchinson and
that Respondent would not stand for a labor organization and that Respondent could
always find a pretext for firing a man for union reasons, Marks' union interrogation
of Stamey and his statement to Stamey that Respondent would close its doors when
it ran out of money fighting the Union and that union activity was one of two
reasons for which Respondent fires its employees, Marks' and Terminal Manager
Stoner's union interrogation of Wayne McClure and Stoner's statement to McClure
that Respondent "didn't tolerate" the Union, and Marks' further interrogation of Mc-
Clure and his statement that McClure could consider himself "gone" if Marks were
advised that McClure had joined the Union. See Carolina Mirror Corporation, 123
NLRB 1712.
It appears as set forth above , that the discharges under consideration coincided
with organizational campaigns at each of the three terminals . Thus in Greenville,
Respondent began taking discharge action later in the same day that Terminl Agent
Watkins summoned and then interrogated Baldwin in the presence of Personnel Di-
rector Marks and Terminal Manager Brown concerning the identity of union mem-
bers. Personnel Director Marks is again on the scene on the occasion of the first
union meeting at Columbia, as he and Terminal Manager Carter engage in surveil-
lance of that meeting ; the next day, Carter summons and interrogates Ellisor concern-
ing his union membership and Carter tells Ellisor that he, Carter, knows who had at-
tended the mentioned meeting the night before; that same day Carter "clean [s] house"
by discharging four employees. And in or about October at the Charlotte terminal
where Personnel Director Marks has his principal office, Respondent discharges a
number of employees during the union campaign there. There are other similarities
in addition to the coincidence of discharges and union activities and also in addition
to the contemporaneous 8(a)(1) conduct at each terminal as set forth above. Re-
spondent thus adduced a particular business situation at each terminal in attempted ex-
planation, or as partial explanation, for its action: purported slack work just happened
to occur during the union campaign in Greenville ; a purported cleanup program just
happened to coincide with the beginning of the organizational campaign at Columbia;
and a seasonal business decline purportedly just happened to take place during the
height of the union campaign in Charlotte . There is still another similar circum-
stance in that Respondent was hiring new employees at Greenville and Charlotte dur-
ing the same periods it was purportedly discharging employees at these terminals for
lack of work. Then there is the further circumstance that of all Greenville ware-
housemen whom Respondent's personnel records state to have been discharged for
"slack business" in the period immediately following Watkins' interrogation of Bald-
win, Respondent fired only union members ; of the four Columbia employees dis-
charged by Carter in his housecleaning campaign on the day after the union meeting
surveillance by Carter and Marks, Respondent discharged only employees who
attended that meeting; and of the seven pickup and delivery men in Charlotte whom
Respondent's personnel records state to have been discharged for "lack of work"
during the period from August 1, 1958, through January 7, 1959 (covering the period
of organizational activities), Respondent discharged only union members.
The record not only discloses Respondent 's flagrant and widespread campaign of
threats and interrogation and other unlawful acts of interference, restraint, and
coercion to implement its opposition to the unionization of its employees ; the record
also establishes , I find , that Respondent was determined, and that it took action, to
break the back of the employees' organizing efforts by ridding itself of union adher-
ents. Respondent's contentions that it discharged aforenamed Greenville employees
because of OSD's and for "slack business" and that it terminated aforenamed Char-
lotte employees for ",lack of work" are, I find, unsupported by substantial credible
testimony; viewing the individual cases covered by such contentions in the light of
the entire record in this matter, I conclude, rather, that the record does preponder-
antly establish that Respondent discharged the mentioned Greenville dockmen and
Charlotte pickup and delivery men because of their union membership and activities
and/or because Respondent attributed such membership activities to them 34 Harley
84 Greenville employees Smith, Byers , Dunn, Christopher, Cheek, Knight, Steading,
Robinson, and Thompkins ; Charlotte employees McNeil, Walter McClure, John McClure,
Hutchinson , and Stamey.
OVERNITE TRANSPORTATION COMPANY 281
Clegg, the warehouseman at Charlotte, also was purportedly discharged for lack of
work. I am also satisfied , and find , that Respondent discharged Clegg because of his
own and/or his son 's (Harold Clegg's) union membership and activities.
There remains of the Charlotte discharges, the case of Wayne McClure. Consider-
ing Marks' and Stoner's union discussion and interrogation of McClure at the time
of McClure's hire and Marks' further interrogation and threat of discharge for
union reasons at the time of the unattended truck incident and viewing these circum-
stances in the background of Respondent' s union hostility, I conclude that Respond-
ent discharged McClure for union reasons and not because of an unsupported claim
of "unsatisfactory work" or because of a truck incident occurring a full month before.
Turning now to the discharge of the four Columbia employees, it is recalled that
Respondent discharged these employees the day after Terminal Manager Carter and
Personnel Director Marks engaged in surveillance of the union meeting attended by
these four employees and on the same day that Carter summoned and interrogated
employee Ellisor concerning Ellisor's union membership and during which conversa-
tion Carter told Ellisor that he (Carter) knew who had attended that union meeting.
Considering the facts and circumstances of each of these discharges as detailed
earlier in this report, including the timing factor as well as the fact that Respondent
is "set against" the Union's organizational efforts,35 I am satisfied by a preponderance
of the evidence that Respondent discharged these four employees 36 because of their
union activities and not for the reasons claimed by Respondent.
It is recalled as to the Greenville terminal that Terminal Agent Watkins sum-
moned and interrogated Baldwin on June 30 concerning the union membership of
individual employees named by Watkins and that Watkins thereupon ascertained that
Baldwin, McKittrick, Watson, William McComb, and other aforenamed employees
had joined the Union. That Respondent unlawfully discharged four employees later
that same day and four more employees the next day (July 1), has already been
determined . Respondent also discharged McKittrick on July 1. Considering the
facts and circumstances set forth above as to McKittrick, including the fact that Mc-
Kittrick was one of the employees concerning whose union membership Watkins
had interrogated Baldwin the day before as well as Terminal Manager Brown 's state-
ment several weeks after the discharge that McKittrick would have to forget about the
Union if he were to be reemployed by Respondent and viewing his discharge in the
context of this entire case, I conclude that Respondent terminated McKittrick because
of his union membership and for no other reason.
Summeral was the next employee to go , on July 2 . It is recalled that Watkins
interrogated Summeral concerning his own and other employees ' union membership
on July 1 and that Summeral then refused Watkins' suggestion to withdraw from the
Union. The record does not establish Respondent's contention that Summeral co-
erced employees to join the Union and that it discharged him for such reason. I
find, rather , that Respondent discharged Summeral for refusing to resign his union
membership . The unlawfulness of this discharge depends on whether, as Respond-
ent claims , Summeral was a supervisor within Section 2(11) of the Act.
Summeral worked the night shift and his duties , according to Manager Brown,
consisted of flagging freight bills and lining up work for the trailers, in connection
with which duties he also initialed freight receipts. Summeral occasionally called
in other employees to assist him in lining up bills, and it also appears that he filled
in and initialed the timecards of employees who failed to punch in and that he
showed some new employees how to punch the timeclock . Summeral 's immediate
superiors were Noles, who was in charge of the night shift, and Night Foreman
Hawkins. Hawkins testified that Summeral was his assistant . Noles and Hawkins
were salaried personnel , as is the dock foreman on the day shift; Summeral worked
at an hourly rate. Summeral denied and the record establishes that Summeral did
not have and did not exercise authority to hire or fire or discipline employees 37
Noles and Hawkins worked 5 days a week and did not work Sunday nights; Sum-
meral worked 6 days weekly, and was in charge of the aforementioned operations
as N.L .R.B. v. Houston and North Texas Motor Freight Lines, Inc., 193 F. 2d 394, 398
(C.A 5), cert . denied 343 US. 934. I am also mindful of the court's stricture that
"opposition of an employer to union organization and restraint , coercion , and inter-
ference are not enough , without more , to make the discharge of an employee an unlawful
one." N .L.R.B. v. Hudson Pulp & Paper Corporation , et al., 273 F. 2d 660, 666 (C.A. 5).
se John and William Calcutt , Harmon, and Laney
8+ He sent home an inebriated employee on one occasion , but after checking with some-
one else in authority.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on Sunday nights in Noles' and Hawkins' absence. Day warehouseman J. G.
Nuckles 38 worked at the warehouse several times on Sunday evenings and Nuckles
would give orders to Summeral on those occasions. Since his discharge, Summeral's
Sunday night functions have been performed by a rank-and-file dockman. The
employees did not consider Summeral a supervisor; they named Hawkins and Nole
but did not name Summeral when being asked to identify their supervisors. What-
ever direction Summeral exercised as to other employees was of a routine nature,
and 11 conclude, upon all the foregoing, that Summeral was not a supervisor within
Section 2(11) of the Act,39 and I accordingly also conclude that Respondent dis-
charged him for refusing to resign from the Union.
The day after Summeral's discharge, Respondent fired Watson, Baldwin, Blanken,
and William McCombs allegedly for soliciting union membership during working
hours. Where there is no rule against soliciting , an employer may nonetheless law-
fully discharge employees for neglecting their own work and/or interfering with
other employees at work. Where, on the other hand, there is an otherwise valid
rule prohibiting solicitation during working hours it is nevertheless unlawful to
discharge employees for union solicitation where it appears that the rule was either
adopted or "applied for a discriminatory anti-union purpose." 40 There was, I find,
no valid rule against soliciting established here 41 I further find in the context of this
record that Respondent discharged these four employees, not for general soliciting
or conversing with Brown during working hours or because they neglected their
work and interfered with Brown (and I am not satisfied upon credible testimony
that they were neglectful or did so interfere), but only because union membership
was the subject of their discussion and they were urging him to join. I accordingly
find that Respondent unlawfully discharged Watson, Baldwin, Blanken, and William
McCombs.
John McCombs and Cassell were respectively discharged on July 7 and 8, after
refusing Watkins' demand that they sign letters (in McCombs' case, the letter also
to be prepared by Watkins) resigning from the Union and also after Watkins had
advised them that signing such letter was a condition to their continued employment
with Respondent. I find, under all the circumstances, that Respondent discharged
McCombs and Cassell because of their union membership and not for absenteeism
as claimed by Respondent.
It appears as to Finley that Terminal Agent Watkins had summoned and inter-
rogated Finley concerning his union membership in Marks' presence on July 1, that
Watkins again interrogated Finley about union matters on July 25 on which occasion
Finley admitted his union membership, and that Watkins summoned Finley some-
time in August and inquired and thereupon obtained information that Finley had
given a statement to the Labor Board in connection with the Greenville unfair labor
practices charge served upon Respondent on July 29. As of August 1958, so far
as appears here, the only Greenville drivers whom Respondent knew to be union
members were John McCombs and Finley, and it discharged McCombs in July as
already discussed.
It is hornbook law that an employer may lawfully discharge his employees for any
reason or even for no reason at all, as it is sometimes said, provided the discharge
is unrelated to union or other protected activities. The questions in Finley's case are
whether he was speeding at all and, assuming that he was, whether he was dis-
charged for that reason or because of his union membership and activities. Finley,
an honest witness, testified that he did not believe he was speeding, and that is what
he told Marks at the time. Marks, on the other hand, testified to Finley's pur-
portedly excessive speed, hereinbefore related. Although this state of evidence
ordinarily might suffice to establish such speeding contention, I am not satisfied
that the record supports such finding here and that Finley was discharged for such
reason. I am loathe in writing these reports. to say directly that a witness is un-
worthy of belief where the same result can be achieved through indirect or more
delicate methods, as 'I have sought to do in this report. In resolving the Finley
case, however, I am forced to state my credibility finding plainly, and it is that I am
88 Nuckles was on the list of rank-and-file employees submitted by Respondent in this
proceeding.
as See N L R.B v Southern Bleachery & Print Works, 257 F 2d 235. 238-239 (C A. 4),
cert. denied 359 U.S 911; Quality Food Markets, Inc, 126 NLRB 349 (as to Gerald
Rostello)
41 N,L.R B v Avondale Mills, 242 F. 2d 669, 671 (C A 5) affd 357 U S. 357. See
Walton Manufacturing Company, 126 NLRB 697
41 Terminal Manager Brown testified, for example, that he did not know whether com-
pany rules forbade union solicitation during nonworking time.
OVERNITE TRANSPORTATION COMPANY 283
unable to credit Marks on contested issues. I predicate this finding on Marks'
demeanor and his entire testimony in this case as well as upon consideration of the
testimony and demeanor of all other witnesses giving testimony on the variety of
issues involved here as to which Marks testified. There is, therefore, no credible
testimony supporting Respondent's claim that Finley was speeding and that Marks
directed his discharge for such reason. Viewing Finley's case in the backdrop of
Respondent's union hostility and its aforedescribed conduct implementing such ob-
jective, including the role of Marks and Watkins in such conduct, and considering,
among other ,things, Respondent's several interrogations of Finley and Finley's
admission of union membership, the explained and unexplained circumstances re-
specting the nonoperating governor or lack of governor at a time that Respondent
assigned Finley his first Spartanburg run in 2 years, and the lack of credible testi-
mony to support Respondent's speeding contention, I conclude that Respondent
discharged Finley because of his membership in the Union.
Greer, the last discharge case, did not have a very satisfactory employment
record and I was not particularly impressed by his demeanor as a witness. How-
ever, I was not more impressed- either by Watkins, who discharged Greer, or by
Wright whom Respondent called in support of Watkins. There are, however, ma-
terial discrepancies between the testimonies of Respondent witnesses Wright and
Watkins, whereas Wright and Greer both testified in effect that the only conversation
they had on that occasion was Greer's comment that the men would have to stick
together if the union campaign were to succeed. Greer testified, as already related,
that they did not stop work during this exchange; Wright did not testify otherwise
and he did testify that he did not even mention to Watkins that Greer had interfered
with his work on that occasion. All that happened, I find, was a passing remark
during working hours without Greer neglecting his own work or interfering with
Wright. I conclude that Respondent fired Greer because of Greer's union member-
ship and sympathies as indicated by Greer's comment to Wright and by his earlier
testimony in this proceeding. While I am unable to find on these facts that the
record preponderantly establishes an 8(a) (4) violation, I do find that Respondent
has thereby violated Section 8 (a) (1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section VIII, above, occurring in con-
nection with the operations of 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 com-
merce and the fiee flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take affirmative action
to effectuate the policies of the Act.
I shall recommend that Respondent offer immediate and full reinstatement to
their former or substantially equivalent positions and without prejudice to their
seniority and other rights and privileges, to all employees appearing on Appendix
A [attached to the Decision] except to those already offered such reinstatement,42
and make whole all employees appearing on Appendix B by paying them an amount
of money equal to what they would have respectively earned as wages from the
date of their discharge to the date of offer of reinstatement, less their net earnings
during such period, all in accordance with F. W. Woolworth Company, 90 NLRB 289.
One of the Greenville discriminatees, Thompkins, was in the military service
at the time of the hearing. If he or any other discriminatee is in the military service
at the present time, it is recommended that Respondent immediately notify each
of them, by registered mail addressed to their last known address that the afore-
mentioned offer of reinstatement is continued until 90 days after discharge from
active military service. The backpay period as to Thompkins and other similarly
situated employees still in military service will run from the date of discharge until
induction into the Armed Forces 43 and from a date' 5 days after timely application
for reinstatement until the date of Respondent's offer of reinstatement.
42 Greenville employees Knight, Steading, and Robinson; Columbia employee Harmon ;
Charlotte employees Walter McClure, Hutchinson, and possibly Stamey (depending on
whether he was offered his former or a substantially equivalent position).
42 The payment for the preinduction penod shall be made immediately without await-
ing a final determination of the full amount of the award, in the case of employees In
the Armed Forces See Aerovox Corporation, 102 NLRB 1526, 1540.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the nature and scope of the unfair labor practices committed, including
the participation therein of General Manager Price and Personnel Director Marks,
I shall also recommend that Respondent cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the Act and that Respondent
also be required to post the notices at all its terminals 44
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Local Union No. 55 and General Drivers, Warehousemen and Helpers
Local Union No. 509, are labor organizations within Section 2(5) of the Act.
2. Respondent Overnite Transportation Company is engaged in commerce within
Section 2(6) of the Act.
3. Respondent has violated Section 8(a) (3) and (1) of the Act by discriminatorily
discharging the employees listed in Appendix A [attached to the Decision].
4. Respondent has further violated Section 8(a)(1) of the Act by coercively
interrogating employees and applicants for employment concerning their own and
other employees' union membership, activities, and sympathies; threatening to shut
down the terminals and to discharge employees for reasons of union membership;
making abandonment of union membership a condition of continued employment
and offering to prepare union withdrawal letters for employees and otherwise
inducing or attempting to induce employees to abandon union membership and
activities; promising benefits to discourage union membership and activities; in-
structing employees to report and inform concerning union activities; threatening
to disclose the union membership of employees to other employers in order to dis-
courage such membership and activities; and engaging in surveillance of union meet-
ings and giving employees the impression of such surveillance.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within Section 2(6) and (7) of the Act.
6. Respondent did not discharge or constructively discharge Harold Clegg in
violation of Section 8(a) (1) and (3) of the Act and did not violate Section 8(a) (4)
as to Greer.
[Recommendations omitted from publication.]
44 N L R B v. United Hine Workers of America, District 23, et at. (West Kentucky
,Coal Company), 195 F. 2d 961, 962-963 (C.A. 6 ) , cert. denied 344 U S 920 ; N.L R B. V.
W, W. Phillips Gas & Oil Co , 141 F. 2d 304, 306 (CA. 3).
APPENDIX A
Gentlemen, today we have called you together to talk to you about a matter that
is of great concern to all of us. This matter concerns the Teamsters Union. First,
let me say that all of you have been granted an increase in salary. Had we known
the Teamsters Union was active in this terminal, I seriously doubt that you would
have been granted this increase, because we would not like for it to appear that this
raise was given on account of the Teamsters Union. This raise was given to you
because you had earned it and is in no way connected with the Teamsters drive.
Since the Teamsters Union has been putting on a campaign to get in here, some
of you have been asking questions in regard to the following matters. We have
decided to state the company's position on these subjects as clearly as we can for
everybody alike.
This matter is, of course, one of concern to the company. It is, however, also
a matter of serious concern to you, and our since belief is that if this Union were
to come in, it would not work to your benefit, but to your serious harm.
It is our positive intention to oppose this Union by every proper and legal means
that we can devise to prevent it from getting in here.
We would like to make it clear that it is not necessary, and is not ever going to
be necessary for anybody to belong to the Teamsters Union, or any other Union,
in order to work for this company.
Those who might join or belong to the Union are not going to get any advan-
tages or any preferred treatment of any sort over those who do not join or belong
to any Union.
If anybody causes you any trouble at your work, or puts you under any sort of
pressure to loin the Union, you should let the company know, and we will undertake
to see that this is stopped.
BRYAN BROTHERS PACKING COMPANY 285
No person will be allowed to carry on Union organizing activities on the job. Any-
body who does so, and who thereby neglects his own work, or interferes with the
work of others will be subject to discharge.
Anybody who tells you anything contrary to any of the foregoing is not telling
you the truth.
Do most of you know why the Teamsters Union is interested in having you sign
up with them ? They are not interested in you as an individual , but are interested
mainly in the dues that you pay. To them it is a business , as our business is to us.
The more members they have is the more money they have coming into their
treasury. After the company is organized , they will fight for only a few of those
members who attend the Union Hall regularly . If you are fired or laid off, they
know that you will have to be replaced by another employee, and they will still
be getting their dues every month.
May I say to you-consider very carefully before you select people with the
Teamsters' reputation to represent you with your employer who has always been
fair and has treated you as you would like to be treated.
If any of you have any questions concerning the Union , or any other matter,
we will be happy to discuss them with you at any time.
Bryan Brothers Packing Company and Amalgamated Meat
Cutters and Butcher Workmen of North America , AFL-CIO.
Case No. 26-CA-926 (f orvnerly Case No. 15-CA-1616). October
5, 1960
DECISION AND ORDER
On June 17, 1960, Trial Examiner George L. Powell issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief. Respondent filed a
brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Jenkins, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the modification indicated
below.'
[The Board dismissed the complaint.]
i We adopt the Trial Examiner ' s resolutions of credibility in this case only insofar as
his findings are based upon his observation of the witnesses and their demeanor at the
hearing . However, we do not adopt his analysis of the credibility of the witnesses
to the extent such analysis appears to be based upon needless speculation as to the
witnesses ' conduct with respect to minor details.
129 NLRB No. 29.