Standard Trucking Co.

National Labor Relations Board - Board Decisions

Nov 17, 1961

134 N.L.R.B. 371 (N.L.R.B. 1961)

STANDARD TRUCKING COMPANY 371
Catholics, and Negroes. He wanted to expose USEA to Goldberg and Weinstein.
Sole also denied that anyone but Williams of the Carpenters Union had said anything
about men walking off the job.
Conclusions
The testimony of Goldberg and Weinstein was inconsistent in many respects and
I am not persuaded from such testimony that either Fluck or Vernaglia threatened to
cause a work stoppage at the Empire project if Atlas was to continue to do the
roofing work. Goldberg was not sure of exactly what Flock said during the several
conversations, but seems only to have the impression that Fluck said something about
pulling men off the job. Weinstein, conceding that neither Flock nor Vernaglia
made any threats to cause a cessation of work on the project, nevertheless stated
he also had the impression that unless Atlas was removed there would be a work
stoppage. Such impressions on the parts of both Goldberg and Weinstein may have
come about because of what Carpenters Union Business Agent Williams said.
The record, however, is not altogeter clear that Williams made such a threat, but
even if he did, it is not attributable to the Respondent Union.
While I am convinced from the whole record that the object of Fluck as well as
the business agents of the other unions was to get Empire to break its contract with
Atlas and discontinue the use of Atlas' roofers, I am also convinced from the testi-
mony of Fluck, Vernaglia, Goldstein, and Sole, which I credit, that they attempted
to accomplish their objective solely by application of moral persuasion and not by the
use of threats, coercion, or restraint.
The conduct of the Respondent Union and its agents found above is not the sort
proscribed by Section 8(b)(4)(ii)(B) of the Act. The pervading sense of this
section of the Act relates to certain activities committed in a context of disputes
between employers and labor organizations having to do with the employment of
persons because of their affiliation or lack of affiliation in unions , or to promote the
interests of labor organizations. What Fluck and the other business agents were
seeking to accomplish with Empire was not the employment or unionists over non-
unionists or the enhancement of the prestige and welfare of their respective labor
organizations, but rather their concern with the threat to social institutions and the
democratic process posed by the USEA. They sought by their persuasion to con-
vince Goldberg and Weinstein of that peril. Such means to get Empire to cease doing
business with Atlas is not in violation of Section 8(b)(4)(ii)(B) of the Act and I
so find. Accordingly I will recommend that the complaint herein be dismissed in its
entirety.
CONCLUSIONS OF LAW
1. The operations of Empire Development Corporation constitute and affect trade,
traffic, and commerce among the several States within the meaning of Section 2(6)
and 7 of the Act.
2. United Slate, Tile, and Composition Roofers, Damp and Waterproof Workers
Association, AFL-CIO, Local Union No. 57, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent Union has not engaged in unfair labor practices within the
meaning of Section 8(b) (4) (ii) (B) of the Act.
[Recommendations omitted from publication.]
Standard Trucking Company and James Albert Pennington,
William Albert Parton , and Joseph E. McJunkin . Cases Nos.
11-CA-1691-1, 11-CA-1691-2, and 11-CA-1691-3. November 17,
1961
DECISION AND ORDER
On April 25, 1961, Trial Examiner William J. Brown issued his
Intermediate Report 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
134 NLRB No. 39.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint, and recommended that the allegations of the complaint
to such extent be dismissed. Thereafter, only the Respondent filed
exceptions to 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, Fanning, and Brown].
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 Respondent's exceptions, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
1. The Trial Examiner found, and we agree, that the Respondent
discriminatorily discharged Pennington. Terminal Manager Case
had been instructed to have a talk with Pennington on the operation
of his assigned equipment. Instead Case discharged him. For such
drastic departure from the instructions of his superior, Case merely
advanced the assertion that in his opinion Pennington was "appar-
ently" riding the clutch. This was not one of the three specific offenses
for which under Respondent's stated rules employees were subject to
summary discharge. In contrast to the finality of the action taken in
Pennington's situation without any investigation to establish the cause
or affix the blame, if any, Respondent did not discharge another em-
ployee charged with breach of one of the major offenses listed by it
as cause for discharge because after investigation it concluded it could
not affirmatively prove that the employee involved had violated the
rule. Nor, with respect to Pennington, was there any new occurrence
involving the clutch problem which was related in that to Case's deci-
sion to discharge him other than the instruction to talk to him about
the proper operation of the vehicle. The discharge was, however,
directly related in time to the union activity and occurred in the con-
text of other unlawful antiunion conduct engaged in by Respondent.
Thus, the group of employees met with and joined the Union on
Saturday, August 27,1960, and the Union made its demand for recog-
nition on August 29, the same day Case interrogated employee
MacAbee with respect to union membership and which employees had
attended the Saturday meeting. The Union filed its petition on
August 30 and Pennington was discharged on August 31, 1960.
Respondent asserts, however, and our dissenting colleague agrees,
that the record evidence fails to establish Respondent's knowledge or
suspicion of Pennington's union activity. We agree with the Trial
Examiner that Respondent gained such knowledge through Case's
STANDARD TRUCKING COMPANY 373
interrogation of MacAbee. Thus, Case asked MacAbee to name the
employees who had attended the union meeting and MacAbee replied
that he could name those who had not attended, and proceeded to
name six. Both MacAbee and Pennington attended the meeting and
there is no contention or evidence that Pennington's name was among
the six listed by MacAbee.
To the testimony quoted by the dissent should be added the testi-
mony immediately following to the effect that although MacAbee could
not testify that Case was writing down the names as they were given
by him, when Case finished writing MacAbee saw him then count the
names he had written down on the pad. Case then asked MacAbee
who the leader was, apparently referring to the group which had
attended the meeting. When MacAbee did not answer, he asked again.
MacAbee, obviously reluctant to identify the leader, then replied, "Mr.
Case, we all went."
From the foregoing it is clear that Case was making a list of em-
ployees for the purpose of identifying and determining those who had
engaged in union activity. It is immaterial to the ultimate value of
the information whether it was gained by process of elimination as
MacAbee chose to give it rather than by the more direct but longer
process of attempting to name all the employees who were present at
the union meeting.
The dissent places significance upon the absence of a showing that
MacAbee's recollection, or his recital to Case, was complete and ac-
curate. We do not agree. MacAbee told Case, "I can tell you who
wasn't at the meeting." If he had any doubt as to the accuracy or
completeness of his memory, there is no assertion that he so indicated
to Case, nor is there any indication that Case questioned the complete-
ness or accuracy at any time. It is sufficient that Respondent relied
upon MacAbee's information as accurately identifying those employees
who were interested in or engaging in union activity. Case freely
admitted that his information that another employee, McJunkin, had
"switched fences" and was for the Union was based upon his conversa-
tion with MacAbee. MacAbee testified without contradiction, that this
was the only conversation regarding the union activity that he had
with Case or any company official.
For the above reasons as well as those fully expressed by the Trial
Examiner in his Intermediate Report, we find, as did the Trial Ex-
aminer, that by the discharge of Pennington, the Respondent dis-
criminated against him in violation of Section 8(a) (3) of the Act.
2. The Trial Examiner found that Parton was discharged for his
union activities rather than for interfering with his own or other
employees' work as asserted by the Respondent by union solicitation
on worktime in violation of Respondent's no-solicitation rule. Our
dissenting colleague, however, considers this case as one in which
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent discharged Parton upon learning of his violation of the
no-solicitation rule, which violation the Trial Examiner found to be
.de minimis. We agree with the dissenting opinion that discharge
,of an employee for violating a valid rule is not discriminatory and that
it is not material that the breach occurred in only one instance. How-
,ever, as we view it, this is not what is involved here. Nor is it, in our
-opinion, an accurate description of the Trial Examiner's view.
In cases such as this where an employer has clearly demonstrated
antiunion animus, has knowledge of an employee's union activity, and
assigns as a reason for his discharge one which could constitute good
,cause, we are concerned solely with ascertaining the motive for the
discharge. In so doing we must determine on the evidence before us
and all the circumstances of the entire case whether the reason given
for the discharge was the real reason or whether it was merely a
pretext.
The so-called no-solicitation rule involved provided :
No person will be allowed to carry on union organizing activities
on the job. Anybody who does so and do [sic] thereby neglect'
his own work or interferes with the work of others will be subject
to discharge.
It was stipulated that under this rule union solicitation was permis-
sible during soft drink "breaks" and "slack work" periods. Parton
testified that he engaged in his union solicitation during these "breaks"
and "slack work" periods, and the Trial Examiner credited his testi-
mony in this respect. As indicated by the Trial Examiner, Case testi-
fied that he received reports from certain specified employees of
Parton's solicitation, but did not bother to investigate to ascertain
their accuracy. It is in this context, as we interpret the Intermediate
Report, that the Trial Examiner, having credited Parton's denial of
untimely solicitation of other employees including those named by
Respondent, credited testimony of Garrett indicating that Parton
may have in fact violated the rule in that one instance, which he labels
de minimis. However, as noted by the Trial Examiner, Garrett was
not among the employees referred to by Case. Garrett's testimony
cannot therefore have any bearing upon Respondent's knowledge or
motive at the time of discharge.
Contrary to the dissenting opinion, it is clear that Parton was not
discharged when Respondent learned that the rule had been breached.
Indeed, Case's own testimony makes it manifest that Respondent did
not know of any violation by Parton when he effected the discharge.
Thus, he assertedly relied upon reports which the Trial Examiner had
concluded were unfounded and not upon the Garrett incident of which
he had no knowledge. It is also clear from his testimony that Case
did not discharge Parton for violation of the rule. The most that
STANDARD TRUCKING COMPANY 375
could be said is that he claims to have discharged Parton for reports
of alleged violations, reports which he made no effort to verify.
In admitting that he made no effort to ascertain whether Parton's
union solicitation had prevented any of the employees who allegedly
reported such solicitation from performing or completing their work,
Case was asked :
Q. Do I take your testimony to mean that because he was talk-
ing to them about the union, that did not have anything to do
with it, just the interfering with the work?
A. It was soliciting union members that caused the interference.
The rule itself imports the requirement of detrimental work per-
formance resulting from such forbidden solicitation before the
offender would be subject to discharge. Yet, by his testimony Case
clearly indicates his interpretation and application to be the subject
matter per se-union solicitation-and not the effect upon employees'
ability to perform their work. This is in complete contradiction to
the import of the stipulation as to when such solicitation was permissi-
ble under the rule. Moreover, the rule requires a breach thereof for
which the employee is subject to discharge, not merely a report of a
breach.
From the foregoing it becomes clear that Respondent discharged
Parton for his union activity and union solicitation, and that in so
doing Case attempted to clothe this unlawful act in legality by a
misinterpretation and misapplication of a valid no-solicitation rule.
On the record as a whole, we can find no warrant for reversing the
Trial Examiner's credibility findings and his conclusion that Re-
spondent unlawfully discharged Parton for his union activity.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Standard Truck-
ing Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in the Union by discharging em-
ployees or otherwise discriminating against them in regard to hire
or tenure or any term or condition of employment.
(b) Interrogating employees concerning their membership in the
Union, directing employees to supply information to be used as a basis
for determining union membership, or threatening employees that it
will never negotiate or contract with the Union.
(c) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form,
join, or assist the above-named or any other union, to bargain col-
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lectively through representatives of their own choosing, and to engage
in 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 James A. Pennington and William A. Parton immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice, and make them whole for any loss of
earning suffered by reason of the discrimination against them in a
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 analyze the amount of backpay
due under the terms of this Order.
(c) Post at its terminal in Greenville, South Carolina, copies of
the notice attached hereto marked "Appendix." 1 Copies of said no-
tice, to be furnished by the Regional Director for the Eleventh Region,
shall, after being signed by a representative of the Respondent, be
posted by the Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for the Eleventh Region, in writ-
ing, within 10 days from the date of receipt of this Order, what steps
it has taken to comply herewith.
MEMBER RODGERS , dissenting in part :
Unlike my colleagues, I would not find that either Pennington or
Parton was discriminatorily discharged.
As to Pennington, there is no evidence in the record which would
support a finding that the Respondent knew that Pennington was a
member of the Union or participated in any union activity. The only
evidence bearing on the subject whatever is the testimony of employee
MacAbee. According to MacAbee, he was called into Case's office
and the following transpired :
.... He (Case) said, "I have heard that just about everybody
up here has signed a union card," and of course I nodded my head
IIn 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."
STANDARD TRUCKING COMPANY 377
yes, I didn't say anything, and he said, "could you tell me who
was at that meeting Saturday ?" and I said, "I can tell you who
wasn't at the meeting," so I began to name the ones that wasn't
there, and he started writing, and I couldn't say that he was,
writing down the names, he was writing as I was calling out the
ones that weren't there.
Q. And did you call out any names?
A. Yes, sir, I called all of the names that I could remember
that wasn't there.
Based solely on the above-quoted testimony of MacAbee, the Trial
Examiner found, and my colleagues are agreeing, that Case ascer-
tained "by interrogation of other employees the identity of the union
members, which would presumably produce knowledge of the union
membership of Pennington who attended the union meeting of Au-
gust 27 and signed a union card." MacAbee's testimony by itself is not,
in my opinion, a sound basis for finding that Respondent knew that
Pennington was a union member. Significantly MacAbee did not
recite to Case the names of those who attended the Union meeting on
August 27. All MacAbee did was to recite the "names that I could
remember that wasn't there." There is no showing that MacAbee's
recollection was complete or accurate, that his-recital thereof to Case
was complete or accurate, or that Pennington was in any way singled
out or identified as a union member. In short, I refuse to predicate a
violation of the Act upon such a tenuous "man-who-wasn't-there"
hypothesis.
Over and above the General Counsel's failure to show that the
Respondent had any knowledge of Pennington's union adherence, the
record clearly establishes that Pennington was in fact discharged for
cause.
Throughout 1960, tractor No. 98 was used almost exclusively by
Pennington. The employee who had previously operated this tractor
for almost a year regarded it, as the Trial Examiner found, as being
in fairly good shape. Yet during the period of Pennington's use of
this tractor, it was necessary to repair, adjust, or replace the clutch
nine times, to replace or repair the drive line five times, and to replace
the drive line joints once. Also during this same period, the Respond-
ent had to replace the engine on this tractor and this included the
installing of a new clutch. On August 12, 1960, the Respondent had
to replace the entire clutch with pressure plates and bearings. Just
12 days later, the Respondent learned that the clutch was again worn
out and would have to be replaced. It was at this point that the
Respondent discharged Pennington. I think it was entirely reason-
able for the Respondent to have concluded that Pennington was
"riding the clutch," thereby burning out a number of clutches. Such
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
improper use of the Respondent's equipment which necessitated costly
repairs clearly. warranted Penningtons' termination. Accordingly,
I would find that Pennington was discharged for cause and not for
union activities.
As to Parton, the record shows that he was discharged on September
12 for violation of a company rule prohibiting union solicitation. The
Trial Examiner found, and the record supports the finding that, be-
tween September 5 and 10, Respondent posted on its bulletin board
a notice announcing a no-solicitation rule, the violation of which
could be ground for discharge. During the same period, each em-
ployee, including Parton, received a letter that called attention to the
rule. Parton admitted that at the time of his discharge the notice had
been posted on the bulletin board for 7 to 9 days, and that he had
read it and was familiar with its contents. The validity of Respond-
ent's no-solicitation rule is not in issue. The evidence shows, more-
over, that Parton solicited certain employees on worktime in violation
of the rule.
The Trial Examiner found, and my colleagues are finding, that
Respondent had a promulgated rule which was violated to some degree
by Parton but that it has not been shown that any violations were
other than de minimis; and that Parton was discharged for union
activities "rather than for interfering with his own or other em-
ployees' work."
I do not understand why Parton's transgressions of Respondent's
no-solicitation rule are regarded as de minimis. No explanation
whatever has been given by the Trial Examiner, and the explanation
of my colleagues is far from convincing. I see nothing in the case to
indicate that Respondent either misinterpreted or misapplied its valid
no-solicitation rule, as asserted by my colleagues. Indeed, the record
does not show any basis for reaching such a conclusion. What is
clear is that Parton violated the promulgated rule, of which he was
aware, and that he was discharged when Respondent learned that the
rule had been breached. Discharge for violation of the rule had been
an announced possibility. That the possibility actually came to pass
does not, without more, repair the deficiency in the General Counsel's
proof.
Accordingly, upon the foregoing facts, I would find that Parton
was discharged for violating the rule and his discharge is not in
violation of Section 8(a) (3) of the Act.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that : '
STANDARD TRUCKING COMPANY 379,
WE WILL NOT discourage membership in Local Union No.
55, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, by discharging employees
or otherwise discriminating against them for activities on behalf
of the above-named or any other union.
WE WILL NOT interrogate employees concerning their activ-
ities on behalf of the Union, nor will we instruct employees to
furnish us information concerning the names of employees who
are members of the Union, nor will we in any other manner inter-
fere with, restrain, or coerce our employees in the exercise of their
rights of self-organization.
WE WILL offer James A. Pennington and William A. Parton
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice, and make them whole
for any loss of pay suffered as the result of discrimination against
them.
All employees are free to become, remain, or refrain from becoming
or remaining members of the Union, or any other labor organization.
STANDARD TRUCKING 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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges filed by the above-indicated individuals , the General Counsel of
the National Labor Relations Board by the Regional Director for the Eleventh
Region , issued the consolidated complaint in this cause . It alleges that the above-
indicated Respondent engaged in unfair labor practices in violation of Section 8 (a) (1)
and (3 ) of the National Labor Relations Act as amended , hereinafter called the Act.
Respondent 's answer admits the jurisdictional allegations of the complaint, but
denies commission of unfair labor practices . At the hearing the above-indicated
labor organization was allowed to intervene.'
In the course of the hearing the Trial Examiner granted the General Counsel's
motion to amend the complaint by adding an additional allegation of violation of
Section 8 (a)(1); the Trial Examiner denied , for failure to state a cause of action,
General Counsel 's motion to amend the complaint by adding as an additional alleged
violation of Section 8(a)(1), the charge that Respondent promised pay increases
to those employees who had been loyal to it.2
The hearing herein was held before the duly designated Trial Examiner at Green-
ville, South Carolina, on January 4 and 5, 1961. The General Counsel, Respond-
ent, and Intervenor were represented and were afforded full opportunity to intro-
duce evidence , to examine and cross -examine witnesses , and to participate fully in
1 Respondent' s objection to a statement on the record as to the reason why the charges
herein were not filed by the Union was sustained by the Trial Examiner.
2 Respondent opposed General Counsel 's motion to amend the complaint in both par-
ticulars ; I regard his motion as a denial of the allegations contained in the amendment
to the complaint.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the proceedings . At the close of the hearing the parties waived oral argument but
reserved the right to file briefs; briefs were, however, not filed.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, the answer admits, and I find that Respondent is a North
Carolina corporation, engaged in the interstate transportation of freight by motor
vehicle under a franchise granted by the Interstate Commerce Commission. Re-
spondent's principal office is at Charlotte, North Carolina, and one of its principal
terminals is located at Greenville, South Carolina; only the Greenville terminal is
involved in the instant proceeding. The complaint further alleges, the answer admits,
and I find that during the 12 months preceding the issuance of the complaint, a
representative period, Respondent's freight transportation in interstate commerce
produced revenues in excess of $100,000, and that Respondent is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act. I find that it would
effectuate the policies of the Act to assert jurisdiction herein.
If. THE LABOR ORGANIZATION INVOLVED
Local Union No. 55, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, hereinafter called the Union, is a labor or-
ganization within Section 2(5) of the Act.
HI. THE UNFAIR LABOR PRACTICES
A. General introductory matters
Respondent's headquarters are at Charlotte, North Carolina, where its principal
executives, President T. E. Hemby, Jr., and Vice President Clyde Hemby, have
their offices. Clyde Hemby has responsibility for operations and is in daily contact
with the managers of the Company's nine terminals. Herman Case is manager of
the Greenville terminal and Ray Smith is dispatching and warehouse foreman there.
The Union participated unsuccessfully in an election in January 1959 and union
activity was renewed on or about August 27, 1960,3 among the 21 drivers and helpers
of the Greenville terminal. On August 29 the Union demanded recognition and
on August 30 it filed a representation petition; an election was held on November 22
in which the Union was unsuccessful. _
The alleged violations of the Act occurred in the period between the renewal of
union activity and the conduct of the 1960 election. The unfair labor practices
alleged include interrogations and threats on the part of Terminal Manager Case and
Vice President Clyde Hemby in violation of Section 8(a)(1) of the Act and the
discriminatory discharge of three employees , Pennington , McJunkin , and Parton in
violation of Section 8(a) (3) of the Act.
B. Interference, restraint, and coercion
1. Interrogation of employees concerning union membership and activities
It is alleged in the complaint that Terminal Manager Case, on or about August
29, and Vice President Clyde Hemby, on or about September 6, interrogated em-
ployees concerning union membership in or about the Greenville terminal . To sus-
tain the allegations of the complaint in this regard General Counsel called Theron
Rainey, William Parton, and Billy MacAbee.
It appears that Rainey, who was and still is a driver for the Respondent, was called
into Case's office early on Monday morning, August 29, and asked by Case if he
had signed a union card . Respondent's salesman , Woodward , and Foreman Ray
Smith were, according to Rainey, in Case's office at that time. Shortly thereafter,
according to the testimony of Parton, Case called him in, Woodward still being
present in the office, and asked Parton whether he had signed. Upon Parton's state-
ment that he would refuse to answer except in the presence of a witness of his own
choosing, Rainey was asked by Parton to accompany him into Case's office to
witness the questioning. Both Parton and Rainey testified that Case put the ques-
tion to Parton as to whether he had signed a card.
Thereafter MacAbee, who worked for the Company as a driver until sometime
3 Dates are in 1960 except where otherwise indicated.
STANDARD TRUCKING COMPANY 381
in September when he quit to accept employment with another carrier, was called,
according to his credible testimony , into Case 's office and asked as to the names of
the employees who attended the union meeting and as to the identity of the leader
of the Union.
Woodward was not called as a witness by Respondent ; Ray Smith , called as a
witness by Respondent, did not deny the foregoing conversations between Case and
employees at the terminal on the morning of August 29; Herman Case did not deny
the interrogation attributed to him and conceded that on Monday morning, Au-
gust 29, he was aware of union activity.
The evidence thus plainly indicates and I find that on August 29 Case interro-
gated employees concerning union membership and activities. There do not appear
to be circumstances present in the instant case which would justify such inquiry and
I find that Respondent thereby violated Section 8(a) (1) of the Act. Cf. Blue Flash
Express, Inc., 109 NLRB 591.
The allegations of the complaint to the effect that Vice President Clyde Hemby
engaged in interrogation in or about the Greenville terminal on or about September 6,
1960, are unsupported by evidence and I shall recommend that they be dismissed.
2. The impression of surveillance
The complaint alleges and the answer denies that Case on or about August 29 gave
employees the impression that Respondent was engaged in surveillance by informing
them that it knew of those who had attended the union meeting. It appears from
the credible testimony of witness MacAbee, not controverted by that of Case, that
in the course of the conversation held in Case's office on the morning of August 29
and referred to above, Case initiated the conversation by referring to MacAbee
as an employee to be trusted and then inquiring, "I've heard that lust about every-
body up here has signed a union card" to which MacAbee silently nodded affirma-
tion. This appears to be the only evidence to substantiate this particular allegation
of the complaint. Any evil implication therefrom is attenuated to the vanishing point
by the further testimony of MacAbee that Case immediately followed with an in-
quiry as to the identity of those who were present at the union meeting. It cannot,
in my judgment, be said that the foregoing constituted giving employees an im-
pression of surveillance and I find the allegations of the complaint in this regard are
not sustained.
3. The order to an employee to report employees not attending the union meeting
The complaint alleges and the answer denies that Terminal Manager Case on or
about August 29 at the Greenville terminal instructed and/or ordered an employee
to report to him the names of those who had not attended the Teamsters meeting
of the preceding Saturday. Billy MacAbee testified that in the course of his conver-
sation with Case in the latter's office on the morning of August 29 Case asked
MacAbee if he could tell him who attended the union meeting. MacAbee said that
he could answer by informing him of those who were not at the meeting and he
proceeded to name those who were not in attendance. According to MacAbee, Case
started writing, presumably the names recited by MacAbee. Case did not deny
MacAbee's testimony. I find the allegations of the complaint sustained as to the
facts and conclude that in the circumstances of the employment relationship Case's
action amounted to an instruction that MacAbee report the names of those not in
attendance and that Respondent thereby engaged in a violation of section 8(a)(1)
of the Act as alleged in the complaint.
4. The threats to fight the Union and never to operate under it
The complaint alleges and the answer denies that Vice President Hemby threatened
employees by informing them that Respondent would fight the Union in every way
and would never operate under a Teamsters union.
Vice President Hemby admits addressing Greenville employees on Tuesday, Sep-
tember 13,,and concedes that his words on that occasion expressed opposition to the
Union's organizing campaign. Issue is drawn as to precisely what was said by
Hemby on that occasion.
The General Counsel called in support of his position on this item of the complaint
Theron Rainey, James Burns, and Francis Little. Rainey's recollection as to Hemby's
statements with respect to the Teamsters Union was that Hemby said he would never
negotiate with the Union or sign a union contract . Burns, also a company truck-
driver, testified that Hemby stated he was not going to recognize any union, pariticu-
larly the Teamsters Union 55, that the Company was going to install a timeclock
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the Greenville terminal, and further that he was going to fight the Union in every
way that he could. Little, a dockworker and occasional driver for the Company,
testified that Hemby stated that he did not believe in the Union and was going to do
everything in his power to keep it out.
For the Respondent, Vice President Clyde Hemby testified that on the morning
of September 13 he addressed employees on the subject of organization by the Union,
his own presentation extending for 15 or 20 minutes , and being followed by a ques-
tion and answer running some 20 or 25 minutes. Hemby stated that his address
consisted of expressing a surprise that organization was occurring in view of his
readiness to discuss problems at all times with the men and that he told the em-
ployees that the Company was going to fight the Union in every legal way that it
could. He further testified that he said that he did not think that the Company,
inasmuch as it was a short-line carrier, could operate under the present union
contract.
There was no record made of the speech and Hemby conceded that he possibly
said a few things in regard to the Union other than those referred to in his testimony.
Terminal Manager Case corroborated Hemby's testimony that the latter expressed
an opinion that due to its short-line nature the Company could not operate under the
Teamsters' contract and stated that the Company would fight the Union in every
legal way. Warehouse Foreman Smith testified that he also was present at the
September 13 speech and that Hemby said he did not see how the Company could
.operate under the Teamsters Union as a short haul carrier and that the Company
-would do everything in its legal rights to keep the Union out.
The Respondent also called as its witnesses as to this item of the complaint, drivers
Kenneth White and Jack Johnson, both attending the hearing under subpena of the
General Counsel. White testified that Hemby said that being a short-haul carrier
Respondent could not operate under the Teamsters Union and was going to fight the
Teamsters with every legal right it could. With some prompting from Respondent's
counsel he finally gave us his best recollection that Hemby expressly made it a mat-
ter of his opinion as to whether the Company could operate under the Teamsters'
contract. White's testimony was not weakened by cross-examination on this point.
Johnson testified that Hemby stated that he did not see how the Company could
operate since it was a short-haul carrier and he would take every legal action he could
to keep the Teamsters out. On his cross-examination Johnson was unshaken as to
his recollection of Hemby's utterances and generally confirmed Hemby's testimony
as to the duration of the meeting and Hemby's statement of the basis for his surprise
that the employees would feel it appropriate to select a collective-bargaining agent.
Under this particular item of the complaint the issue is whether or not Hemby
threatened employees by stating that he would fight the Teamsters Union in every
way and that Respondent was never going to operate under the Teamsters Union.
I find the facts to be that on September 13 Hemby addressed employees and expressed
his surprise at union organization in view of his ready accessibility for discussion of
problems of grievances. I find that in the course of his talk to the employees on that
occason Hemby stated that he did not see how .the Company could operate under the
Union as a short-haul carrier and that he would do everything in his legal rights to
keep the Union out. In making this finding I am accepting as credible witnesses
Respondent 's witnesses Ray Smith, White, and Johnson.
As to this item of the complaint I find that Hemby's utterances were no more than
an expression of opinion respecting the difficulties of operation under a union agree-
ment, in view of the nature of Respondent's operations, coupled with the assertion
that he would use every legal means to keep the Teamsters out. These statements
do not amount to a violation of Section 8(a)(1) of the Act.
5. The threat never to bargain or negotiate a contract
By amendment to the complaint allowed at the hearing the General Counsel has
alleged as a violation of Section 8(a) (1) that Vice President Clyde Hemby on or
about September 12, 1960, threatened employees by informing them that the Com-
pany would never bargain with the Teamsters Union or ever negotiate a contract
with it. The testimony as to Hemby's remarks on .the occasion of his speech to the
employees on September 13 is recounted above. 'I credit Rainey's testimony that
Hemby, in the course of his talk, stated that he would never negotiate with the Union
or sign a union contract. These utterances amount to more than an expression of
opinion as to impossibility of operating under the Teamsters' contract; they are
rather an assertion of 'a threat in the nature of an anticipatory refusal to bargain and
therein amount to interference in violation of Section 8(a)(1).
STANDARD TRUCKING COMPANY 383
C. The discriminatory discharges
The complaint alleges violations of Section 8(a) (3) in the discharges of Penning-
ton on August 31 , McJunkin on September 6, and Parton on September 12, 1960.
Respondent asserts that each was in fact discharged for cause . The circumstances
surrounding the discharges and the justification offered by Respondent in each case
is a separate matter and they are therefore separately considered below.
1. James Albert Pennington
Pennington was hired as a warehouseman on April 1 , 1958 . He had had several
years prior experience as a truckdriver for another carrier. Shortly after hire he
was put on driving and worked as a driver until his discharge . During most of 1960
he was operating tractor No . 98 which was known among a number of the employees
as "Pennington 's tractor ." It was also derogatorily referred to by some of the em-
ployees as a "dog" or a "tramp." 4
The General Counsel stated that his case as to Pennington rests upon the timing
of the discharge 5 and the circumstance that the reason given to Pennington as the
basis for his discharge was false and necessarily known by Respondent to be false.
The reason given Pennington at the time of his discharge and the position asserted
throughout this proceeding by Respondent is that Pennington was discharged for
"tearing up company equipment ," specifically , for riding the clutch and thereby caus-
ing damage to tractor No. 98.
Pennington was assigned to tractor No. 98 in mid -September 1959. Previously
No. 98 had been operated by Billy Troy Gosnell who operated it for almost a year
up until June 1959. Gosnell regarded it as being in fairly good shape although he
experienced some difficulty with air leakse. He knew .that No. 98 was receiving a
substantial amount of use as a road tractor on nightly runs to Charlotte while in use
in the daytime for peddle runs.
Pennington recalled that the clutch was twice replaced in tractor No. 98 during
the period it was assigned to him. He concedes that there might have been additional
changes in the clutch that he did not recall or have personal knowledge of. He
testified that on the morning of his discharge the clutch was in good shape.
It appears from the testimony of Pennington and other witnesses that during the
time Pennington operated No . 98 on the peddle run to Westminster during the day-
time, it was in use at night by other drivers for switching operations at the terminal
and for interchange with other carriers in the metropolitan Greenville area. The
amount of use received by No. 98 from operation of other drivers appears to have
been 10 percent or less of its total use. It does appear however from the testimony
of witnesses ( and it would indeed be a matter of commonsense ) that switching and
interchange by their very nature would call for more frequent and strenuous use
of the clutch than over-the-road operations.
Four fellow drivers of Pennington testified to the generally bad condition of
tractor No. 98. MacAbee testified that he operated tractor No. 98 on several occa-
sions during 1960, and testified that the clutch was in extremely bad condition.
Generally he observed that tractor No. 98 was the worst -as to its general operating
condition of the seven or eight tractors attached to the Greenville terminal.
James Burns, who was assigned to No . 98 'after the discharge of Pennington,
also operated it before August 31, 1960, and characterized it as an old rundown
tramp of a truck . He observed that the clutch was slipping and in fact reported
the poor condition of the clutch to Terminal Manager Case and Dispatch Foreman
Smith on two or three occasions in 1960 . The poor general condition of No 98
is also attested by the fact that on the day of Pennington 's discharge , Burns drove
tractor No. 98 about 2 miles from the terminal when it quit on him and another
truck had to be sent out to rescue him. Burns did observe that substantial overhaul
work had to be done on No. 98 about 2 months before Pennington 's discharge
and he also observed that following ,the discharge of Pennington No. 98 was placed
in the shop for repairs
Ansel Garrett, who had operated tractor No. 98 to some extent in 1959 , testified
that sometime in the summer of 1960 Pennington called him over to observe No.
6 Of the seven or more tractors at Greenville, No 98 appears to have been the one in
poorest operating condition in 1960.
5 The discharge occurred only 2 days after the Union's demand for recognition and
Terminal Manager Case's ascertaining by interrogation of other employees the identity of
the union members, which would presumably produce knowledge of the union member-
ship of Pennington who attended the union meeting of August 27 and signed a card.
At least one clutch burned out during Gosnell's period of operating No 98
384 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
98 and at that time he observed that the clutch was slipping so badly that he ad-
vised Pennington to refuse to drive it. Little operated No. 98 during part of 1959
and •1960 and found it in pretty rundown condition and specifically with a slipping
clutch.
For the Respondent, Ray Smith testified that during 1960 he was present at sev-
eral meetings in which Pennington and Case discussed the condition of the clutch
and the drive line on tractor No. 98. It appears to be part of Smith's duties to
check equipment together with Terminal Manager Case and he checked the clutch
on No. 98 about a month before Pennington's discharge and together with Case
checked the clutch again on August 31 and found it loose. On that date, however,
they did not start the engine to test the clutch in operation but relied upon the
tension pedal of the pedal itself.
About the middle of August 1960 Vice President Hemby instructed Terminal
Manager Case to put a close watch on tractor No. 98 since the records of the
Company showed excessive maintenance cost. Hemby identified Respondent's Ex-
hibit No. 2 ase summary of repairs to tractor No. 98 during the time it was oper-
ated by Pennington. It shows substantial and frequent expenditures for clutch
adjustments and installations. Hemby testified that following the repairs of Sep-
tember 3, 1960, which included a clutch replacement, there have been no addi-
tional difficulties with the cluch in tractor No. 98 although it has been in daily use
at,the Charlotte termmal.7
Case testified that there had been no difficulty with the clutch on tractor No.
98 before September 15, 1959, when it was assigned to Pennington and that he
talked to Pennington about riding the clutch in January 1960 and again sometime
in the middle of the year.
Pennington impressed me as thoroughly credible notwithstanding his interest in
the proceedings. I credit his denial that he rode the clutch and I credit his testimony
that he so informed Case. I also find Smith to be a thoroughly credible witness;
there is no necessary conflict in Pennington's denial that he had a discussion in 1960
with Case in the presence of Smith about the number of clutches Pennington was
burning out and Smith's testimony that he was present at a conversation in 1960
between Pennington and Case about the clutch and drive line in the No. 98 tractor.
Although Case testified that sometime about July 1960 he and Smith both talked
to Pennington and accused him of riding the clutch, on the specific accusation of
riding the clutch Case was not corroborated by Smith.
I find and conclude that the reason assigned by Respondent at the time of Pen-
nington's discharge and asserted throughout this proceeding was not in fact the true
reason for his discharge. Respondent well knew that tractor No. 98 was regarded
by a substantial number of its drivers as an inferior tractor and it also knew that
it received a substantial amount of use (varying according to the estimates from
5 to 10 percent of the total use) by several operators other than Pennington; their
use was of such a nature as to be more wearing on the clutch and the drive line.
Pennington was an experienced driver and had never been criticized for any of his
operations other than on the occasion of his discharge; in fact he had been praised
by his superiors for the excellence of his work. Hemby testified that at one point
he instructed Case to "have a meeting with his man and talk to him and explain
to him how to do." This instruction of Hemby appears to me to be the way the
Respondent would, absent antiunion motivation towards Pennington, have operated
Case however did not follow through in line with these instructions but discharged
Pennington although the most he could assert was that Pennington was "apparently"
riding the clutch. I find and conclude that by the discharge of Pennington, the
Respondent discriminated against him in violation of Section 8(a)(3) of the Act.
2. Joseph E. McJunkin
In his opening statement, General Counsel asserted that the discriminatory char-
acter of the discharge of McJunkin would be established by an antiunion utterance
at the time and by a showing of the false character of the reason allegedly given
McJunkin for his discharge, namely, his failure to live up to a settlement agreement
with another motorist for meeting the cost of a collision: Respondent has main-
tained throughout that the basis of McJunkin's discharge was his failure to report
an accident involving his operations
McJunkin was hired at the Greenville terminal in August 1958 and assigned to
drive a combination truck on local pickup and delivery between Greenville and
Anderson. He attended the union meeting on August 27 and signed a card. The.
evidence indicates that at the time of the prior election at the Greenville terminal
7 No attempt was made to show comparability of use with that during Pennington's tour
of duty on it.
STANDARD TRUCKING COMPANY 385
in 1959 Case had been, to the knowledge of the Company, opposed to the Union.
On Thursday, September 1, while unloading merchandise in Anderson, he collided
with a 1949 Chevrolet operated by one Snipes. Because of prior accidents on his
record he did not report the accident to his employer but worked out an agreement
with Snipes to pay the estimated cost of $119 for the repair of Snipes' vehicle .8
Thereafter on Tuesday, September 6, shortly after he reported for work, he was in-
formed by Dispatch Foreman Smith that he was to be transferred to a tractor-trailer,
a more desirable form of work since it involved less manual effort and would
eventually lead to over-the-road operations, although at the time there was no im-
mediate increase in his compensation. McJunkin took the tractor-trailer to Anderson
and tried to communicate with- Snipes in connection with their settlement under-
standing but was unable to reach him. In the meantime Snipes called into the
Greenville terminal and informed Case of the accident and of the arrangement
worked out between himself and McJunkin. When McJunkin returned to Greenville
about 6 o'clock on the evening of September 6, he was told by Smith to report im-
mediately to Case.
McJunkin's version of the conversation on the occasion is that Case opened it by
saying that he knew McJunkm had signed with the Union and he wanted to know
why he had changed from being a company man. Thereafter, according to Mc-
Junkin, Case said that Snipes had called in and that because McJunkin had failed to
live up to his settlement agreement he had no alternative but to discharge him.
McJunkin then, according to his testimony, attempted to explain to Case the circum-
stances of his unsuccessful efforts to contact Snipes but Case told him this was not
material to the case. McJunkin testified that at no time in the course of his
discharge conversation did Case say anything about McJunkin's failure to report the
accident. McJunkin further testified that neither Case nor any other official of the
Company at any time told him of any rule about reporting accidents.
Case's version of the conversation is that he immediately asked McJunkin why the
accident had not been reported and McJunkin said that he wanted to keep his record
clear and he knew he would be discharged if he reported it. Case further denies that
he had any talk with McJunkin on that occasion about the Union.
McJunkin's statement that at no time was his failure to report the accident dis-
cussed in the course of the discharge conversation is to me incredible. The record in
this proceeding is replete with evidences of the safety consciousness of the Respond-
ent Company and of its inflexible requirement that any accidents of any nature be
reported as a part of the Company's safety program.
Drivers who denied that they were ever personally instructed by officials of the
Company to report any operating accidents conceded that they knew as a matter of
commonsense and of basic understanding in the truckdriving trade that accidents were
required to be reported irrespective of whether the driver is at fault. Vice President
Hemby, in charge of safety operations, testified that the standard operating procedure
is that terminal managers are instructed as to the requirement of reporting accidents
at the time of their hiring. Hemby also credibly testified that in the more than 16
years he has been with Standard Trucking, he recalled not a single instance of an
unreported accident other than McJunkin's and Case added that at the time McJunkin
was hired he was told that accidents must be reported under penalty of dismissal.
It also appears from the testimony of Hemby and Case that about the time of the
starting of school in August 1960, Hemby spoke at a safety meeting at the Green-
ville terminal and repeated the rule on the reporting of accidents. McJunkin. was
present at that meeting.
The estimates of the time that McJunkin was in Case's office on the day of his
discharge varies from the 5 or 6 minutes estimated by Case, to the 15 to 45 minutes
estimated by McJunkin. Even accepting McJunkin's estimate as closer to the fact. he
does concede that about 90 percent of the time was spent talking about the Snipes.
situation Therefore, even accepting McJunkin's testimony that the Union was dis-
cussed and discrediting Case in this regard, I find that any discussion of the Union on
that occasion was limited to a more or less casual inquiry from Case as to why
McJunkin changed from being an antiunion man to being one of the union supporters
This, however, plainly does not appear to have been an operative factor in the dis-
charge. On the record in this proceeding, the compelling weight of the testimony is
s McJunkin's testimony that the reason he did not report the Snipes accident was be-
cause he knew the Company' s antiunion feelings would entail his discharge impressed me'
as a patently floundering effort to bolster his case He also obviously quibbled as to his-
understanding of company requirements on accident reporting
630849-62-vol. 131-26
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the effect that the real reason for the discharge of McJunkin was his failure to
report the accident.
I find and conclude that Respondent did not violate Section 8 ( a)(3) of the Act
by the discharge of McJunkin , and that in truth and in fact , he was discharged for
cause.
3. William Albert Parton
Parton was discharged on September 12, the assigned reason being violation of a
company role prohibiting union solicitation resulting in neglect of the solicitor's
work or interfere with the work of others. General Counsel contends that the
rule invoked at the time of Parton 's discharge was invalid because ( 1) it was posted
and applied only at the time of union campaigns and (2 ) the intermittent nature of
operations at the Greenville terminal do not necessitate such a restriction . Finally,
General Counsel contends that the evidence will establish that, in any event , Parton
did not violate the rule. The Respondent 's position is that the employer has the
right to determine the manner in which worktime will be used and that it may, by
specific approval in each case , allow the use of worktime for solicitation for selected
charitable agencies or other favored purposes while at the same time denying its use
for union solicitation.
Parton was hired in April 1959 as a freight checker, warehouseman , and occasional
fill-in driver . He signed up for the Union on August 27 and was interrogated by
Case as to his union membership on the morning of August 29. Parton 's testimony
that he insisted upon a witness to his affirmative answer to Case's question is cor-
roborated by Rainey and, indeed , not denied by Case. His regular tour of duty
commenced at 1:30 a.m . in relief of employee Robinson and his duties were to
check and assist in the loading and unloading of trailers arriving in the nighttime and
into the morning and additionally to see that the premises were clean and neat.
On the morning of September 12 Parton drove an interchange load within the
Greenville area then called in for instructions and was told by Case to report back to
the terminal . On reporting to Case's office he was shown a copy of a notice ad-
dressed to employees referring to the union campaign , and containing in paragraph
6 the following:
No person will be allowed to carry on union organizing activities on the job.
Anybody who does so and do thereby neglects his own work or interferes with
the work of others will be subject to discharge.
According to Parton 's testimony the ensuing conversation consisted merely of Case's
reading off paragraph 6 and informing him that he was discharged for violation of the
rule therein set forth . Parton testified that he inquired as to whom he had been carry-
ing activities on with and that Case refused to say anything further at that time.
Smith was present at this conversation . Parton testified that Case stated he did not
want to hear any argument from Parton and that sometime in the conversation,
according to Parton , Smith started to say something but Parton told him to keep
his mouth shut . Case did not give any different version of the conversation occur-
ing at the time of the discharge but added that Parton did not deny the charge
that he had been soliciting.
The record is not crystal clear as to the precise date on which the no-solicitation
rule was promulgated either in the form of letters sent to all employees or in the
form of a blown-up version of the letter posted on the bulletin board . Although
MacAbee testified that the notice was not posted until September 12 or 13, on cross-
examination he conceded that the notice was posted by the date of McJunkin's dis-
charge September 6. He testified also that he received his copy through the mail
shortly after September 2. Pressed by Respondent 's counsel to admit that the
bulletin board notice was posted on August 31 following the union meeting of the
27th , MacAbee could not deny that it was there as early as that date. Parton on his
cross-examination testified that at the time of his discharge the notice had been
posted on the bulletin board for 7 to 9 days and that he read it and was familiar with
its contents .9 The letter transmitting copies to employees is dated September 1, but
some delay occurred in mailing . I find that the notice was posted and the letter re-
lating to it mailed sometime in the period September 5 to 10. -
The evidence indicates that the nature of the operations in the terminal are such
that occasional slack work periods occur in the course of which the employees engage
in conversations , drink soft drinks, and otherwise relax; it was stipulated that solici-
tation for the Union would be allowed on such break times when employees were not
9 The evidence indicates that the same or a similar notice had been posted shortly before
the election in 1959 and had been removed at that time at the instruction of representa-
tives of the Board.
STANDARD TRUCKING COMPANY 387
working. Parton testified that he solicited for the Union on such break periods and
specifically recalled soliciting employees Williams, Johnston , and Fuller. Case,
however, testified that he had received reports from employees Robinson , Williams,
Johnston , and Miss Merck that they had been solicited by Parton at times when such
solicitation interfered with their work . iO I credit Parton's testimony that at the time
of his discharge he asked Case for the names of the employees he was supposed to
have solicited in violation of the rule and his further testimony that Case refused to
give him the particulars in this regard . I credit also the testimony of employees
Rainey, Burns, and Little that they were not solicited by Parton and they never saw
him solicit others on worktime although this testimony is as pointed out by Re-
spondent , essentially negative . Garrett, who impressed me as a credible witness, did
testify that Parton solicited him on worktime . Garrett was not, however , one of the
ones whom Case referred to as having complained to him about Parton's solicitation
and I can only conclude that this testimony , on direct examination , came as a sur-
prise to all parties. Nor can I find much significance in Case's testimony that Parton
never denied the charge in view of the testimony , which I credit, that Case refused to
supply him particulars.
I find that Respondent had a promulgated rule ii which was violated to some degree
by Parton but that it has not been shown that any violations were other than
de minimis; appraising the evidence in its entirety , it clearly appears that Parton was
discharged for his active role in organization rather than for interfering with his
own or other employees ' work. I find his discharge to be violative of Section 8(a) (3)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with its operations 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 obstrucing commerce and the free flow
of commerce.
V. THE REMEDY
In view of my finding that Respondent has engaged in several acts of interference,
restraint , and coercion , I shall recommend that it cease and desist therefrom. Also
in view of my finding that Respondent discriminated with respect to the tenure of
employment of James Albert Pennington and William Albert Parton , I shall recom-
mond that Respondent offer them immediate and full reinstatement to their former
or substantially equivalent positions , without prejudice in any way , and make them
whole for any loss of earnings they may have suffered by reason of Respondent's
discrimination against them by payment to them of sums of money equal to those
which they normally would have earned from their discharge dates to the date of
Respondent's offer of reinstatement , less net earnings during that period . Backpay
shall be computed on a quarterly basis in the manner prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289, I shall recommend the posting of an
appropriate notice.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act.
2. Local Union No. 55 , International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interrogating its employees concerning union membership , by directing an
employee to report the names of union adherents , and by a speech addressed to
employees including a threat never to negotiate or contract with the Union, Re-
spondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act. '
'Olt appears that Case never checked out these reports Only Miss Merck testified on
the subject of Parton's solicitation. I credit Parton 's testimony as to the time of his
solicitation.
"The rule Is not necessarily Invalidated by the fact that its promulgation coincided
with the resurgence of union activity or that other solicitation was allowed with specific
prior approval of management Carolina Mirror, Corporation, 123 NLRB 1712
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By discriminating in regard to the tenure of employment of James A . Pennington
and William A. Parton , thereby discouraging membership in the above -named Union,
Respondent has engaged in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Allegheny Pepsi-Cola Bottling Company and Chauffeurs, Team-
sters and Helpers, Local Union No. 771 , International Brother-
hood of Teamsters, Chauffeurs , Warehousemen & Helpers of
America . Case No. 4-C, 4-3257. November 17, 1961
DECISION AND ORDER
On May 22, 1961, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
spondent 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 Intermediate Report
attached hereto. The Trial Examiner also found that Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint, and recommended that these particular allegations be dis-
missed. Thereafter, Respondent filed exceptions to the Intermediate
Report together with a supporting brief.
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 [Chairman McCulloch and Members Rodgers and
Leedom].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing, and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner.
1 We agree with the Trial Examiner that the Union ' s majority is unaffected whether
Bruce Snyder be included in, or excluded from , the unit of driver-salesmen and ware-
housemen at the Lancaster warehouse . We shall , however, as requested by the Respond-
ent, determine Snyder ' s unit placement . Snyder drives a tractor -trailer from Respondent's
Harrisburg plant to Lancaster where the bottled soda is unloaded and replaced with
empties for the return trip to Harrisburg . Although Snyder drives to the Lancaster
warehouse sometimes twice daily during the summer , his trips during the winter months
are usually made only once it week . The tractor -trailer is garaged and serviced in the
Harrisburg area where Snyder lives and receives his paycheck . In these circumstances,
we believe Snyder's interests are not identifiable with those of the employees at the
Lancaster warehouse . Accordingly , Snyder is excluded from the unit . When, therefore,
on November 8, 1960 , at a meeting of the nine employees in the Lancaster warehouse
unit , Respondent interrogated employees as to union affiliation and five of the nine
answered in the affirmative , it was clear that the Union commanded majority support.
Further , as the Trial Examiner found, by November 9 when Respondent received the-
Union's letter dated November 7 requesting recognition, six of the nine employees had
134 NLRB No. 50.