Thurston Motor Lines, Inc.

National Labor Relations Board - Board Decisions

Sep 14, 1981

257 N.L.R.B. 1262 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thurston Motor Lines, Inc. and Highway and Local
Motor Freight Employees, Local 667, affiliated
with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America. Cases 26-CA-7495, 26-CA-7540,
and 26-CA-7937
September 14, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND ZIMMERMAN
On March 16, 1981, Administrative Law Judge
Thomas E. Bracken issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions2 of the Administrative Law Judge and
to adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Thurston
Motor Lines, Inc., Tupelo, Mississippi, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommneded Order, except
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings.
In the absence of exceptions, we find it unnecessary to consider the
rationale relied upon by the Administrative Law Judge in dismissing the
complaint allegations that Respondent had unlawfully discharged truck-
driver Brooks L. Steele.
3 In its exceptions, Respondent contends that the Administrative Law
Judge's recommended remedy ordering Respondent to reinstate dock-
worker Donnie Long should be modified because Long had rejected an
earlier offer of reinstatement. The record, however, does not reveal if the
alleged earlier offer was an unconditional offer of reinstatement, and,
therefore, we find that the issue of Long's reinstatement is a matter best
resolved at the compliance stage of this proceeding.
In sustaining the violation found in the discharge of Long, Member
Jenkins does not rely on Wright Line. a Division of Wright Line, Inc., 251
NLRB 1083 (1980), because the Administrative Law Judge correctly
found the asserted lawful reason for the discharge to have been a pretext,
unsupported by any evidence. In such cases there is only one genuine
reason for the discharge, the unlawful one, and the Wright Line analysis
is of no effective use.
In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
that the attached notice is substituted for that of
the Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT discharge or threaten to dis-
charge any employee for supporting Highway
and Local Motor Freight Employees, Local
667, or any other union.
WE WILL. NOT coercively interrogate our
employees concerning their union activities.
WE WILL NOT threaten that we will close
the terminal down if the Union is voted in.
WE WILL NOT threaten our employees with
unspecified reprisals because they selected the
Union as their bargaining representative.
WE WILL NOT solicit grievances and imply
that we will rectify them in order to induce
our employees not to support the Union or
any other labor organization; provided, how-
ever, that nothing herein requires us to vary or
abandon any economic benefits or any terms
and conditions of employment which we have
heretofore established.
WE WILL NOT unilaterally and without noti-
fication and/or bargaining with the Union
change the hours of work and working condi-
tions of our employees.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their Section 7 rights.
WE WILL. offer Donnie Long and Larry W.
Johnson immediate and full reinstatement to
their former jobs or, if those jobs no longer
exist, to substantially equivalent positions,
without prejudice to their seniority or other
rights and privileges they previously enjoyed,
and WE WILI. make them whole for any loss of
earnings they may have suffered, with interest.
WE WILL make whole, with interest, any
employee who lost wages or other benefits on
December 18, 19, and 20. 1978, because of the
application of the unilaterally instituted
changes in working hours.
THURSTON MOTOR LINES, INC.
257 NLRB No. 171
1262
THURSTON MOTOR LINES, INC.
DECISION
STATEMENT OF THE CASE
THOMAS E. BRACKEN, Administrative Law Judge:
This case was heard by me on April 9, 1979,' in Mem-
phis, Tennessee, and on March 24 and 25, 1980, in
Tupelo, Mississippi. 2 In substance the complaints aver
that Respondent committed acts violating Section 8(a)(1),
(3), (4), and (5) of the National Labor Relations Act, as
amended.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the brief filed by the General Counsel, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation doing business in the
State of Mississippi as an interstate motor freight carrier,
has a terminal in Tupelo, Mississippi, and during the past
12 months, purchased and received at this terminal prod-
ucts valued in excess of $50,000 directly from points out-
side the State of Mississippi. The Company admits, and I
find, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
The Company's principal office is in Charlotte, North
Carolina, and it operates approximately 41 terminals in a
large number of southern and eastern States.3 The Com-
pany employs 2,600 to 3,000 employees throughout its
system. Its Tupelo terminal was first opened in an old
warehouse in 1973, and, in July 1978,4 a new terminal
was dedicated which employed approximately 10 hourly
paid truckdrivers, 2 warehousemen, several office cleri-
cal employees, and a terminal manager.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
111. THE ISSUES
This case presents the issues of whether Respondent:
(1) threatened employees with plant closure if the Union
was voted in; (2) coercively interrogated employees
about union activity; (3) solicited its employees' griev-
ances and implied that it would rectify them; (4) threat-
'On this date Administrative Law Judge Richard L. Denison presided,
with the chief issue being argument on a subpoena duces tecum iled by
counsel for the General Counsel and Respondent's petition to revoke.
2 The original charge was filed by the Union on November 13. 1978,
and a complaint was issued thereon on December 28. 1978. The second
charge was filed on December 11 1978 (amended on December 18. 1978,
and on January 10. 1979) and on January 18, 1979. an order consolidating
cases and amended Complaint was issued. On July 20. 1979, the third
charge was filed and the same was amended on August 10. 1979 On
August 16, 1979. a "Motion to Consolidate Cases and Amend Order Con-
solidating Cases, Amended Complaint and Notice of Hearing" v"as
issued. By order dated August 23, 1979, the motion of the General Coun-
sel was granted. Answers were duly filed by Respondent.
I The president of the Company, Franz F. Holscher testified that it
operated in 14 States, whereas Edgar Sims, its safety supervisor, testified
it operated in 22 States. It is not necessary to resolve this conflict
'All dates are in 1978 unless otherwise stated
ened employees with unspecified reprisals because they
selected the Union as their collective-bargaining repre-
sentative; (5) laid off Donnie S. Long and discharged
Larry W. Johnson and Brooks L. Steele because of their
union membership and activities: and (6) violated Section
8(a)(5) of the Act by unilaterally changing employees'
hours and working conditions without notifying or con-
sulting with the Union.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prior to Certification
1. The signing of authorization cards
On August 14, 10 or 11 of Respondent's Tupelo driv-
ers met in a wayside park 2 or 3 miles from the terminal.
The record does not indicate who called the meeting, or
who secured the union authorization cards that were
produced at the meeting. All employees presented signed
cards, including Donnie S. Long, Larry W. Johnson, and
Brooks Steele, the three alleged discriminatees. On
August 24, a representation petition was filed by the
Union. 5
2. Threat of plant closing
Donnie S. Long had been hired as a dockworker by
Terminal Manager Lucien Filgo on August 28, 1977.
Filgo had been the Tupelo terminal manager since its
opening in 1973, and, as admitted by Respondent, was its
agent and a supervisor under the Act. In late August,
Long was riding with Filgo to a customer's place of
business so that Long could load a trailer. Long testified
that he did not know how the subject of the Union came
up, but after it did:
He told me that it wouldn't do any good for the
employees of Tupelo to sign union cards and vote a
union in; that Thurston would shut the Tupelo ter-
minal down and they would bypass it and run the
route freight from Memphis to Atlanta and totally
do away with the Tupelo terminal, if we voted the
union in.
Long's testimony was uncontradicted as Filgo did not
testify and I credit it. Filgo was terminated by Respond-
ent sometime in the following October.6 As testified to
by Respondent's president, Franz F. Holscher, he and
Filgo remained on friendly terms following his termina-
b Official notice is taken of representation proceeding, Case 26-RC-
5843. A hearing was conducted thereon on September 14, with a Deci-
sion and Direction of Election issuing on September 22 for a unit of em-
ployees consisting of all local pickup and delivery drivers, road drivers,
checkers, and dockmen employed by Respondent at its Tupelo. Mississip-
pi, location, excluding all office clerical employees and supervisors as de-
fined in the Act. An election was conducted on October 20, in which the
Petitioner-Union received a majority of the valid votes, and on October
30 the Union was certified as the collective-bargaining representative of
the employees.
I G.C. Exh. 17 contains the Company's weekly payroll records for
1978. Filgo signed the payroll records from the first week of the year up
to and including the week ending October 7. However, Craig King, a
new operations manager. signed the October 14 payroll and the payroll
records for the successive weeks of the ear
1263
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, and Holscher talked to him "quite often." Holscher
further testified that he had asked Filgo to be a witness
at the hearing and Filgo promised to appear. Holscher
could only "surmise" that Filgo was at his home.
No words can put more economic fear in the minds of
workers than an employer's threat to close the plant
down when made in the context of a union's organiza-
tion of its employees. Chemvet Laboratories, Inc. v.
N.L.R.B., 497 F.2d 445 (8th Cir. 1974). Filgo was an
agent of the Company, and, accordingly, the threat was
attributable to the Company. As the threat was clearly
coercive the Company thereby violated Section 8(a)(l)
of the Act. Marsden Electric Company, 226 NLRB 1097
(1976).
3. Interrogation
Larry W. Johnson was hired by Filgo and started to
work on July 19 as a city driver. He had signed a union
card at the August 14 meeting at the wayside park.
Sometime thereafter, he and another driver, Charles
Baldwin, were on the company dock eating lunch. John-
son testified that Filgo came up to them and said, "The
boys really messed up; that we didn't need no union
down here." Filgo then asked him what he thought
about it and Johnson replied that he was making more
money than he had ever made before and he was unde-
cided. As far as the record shows this ended the conver-
sation. This testimony was uncontradicted and I credit it.
This statement of Filgo, followed by his questioning of
the two employees, interferes with the rights of employ-
ees to be free of employer intrusion into their protected
activities. Hence, I find that it violates Section 8(a)(1) of
the Act.
4. The layoff of Donnie Long
a. The General Counsel's version
From the time Long had been hired as a dockworker7
his major duties consisted of unloading freight from trail-
ers and loading freight onto trailers. Most of the time he
performed these duties at Respondent's terminal, but oc-
casionally he would be sent to a customer's place of busi-
ness to perform the same work. At the time he was hired
he passed a driver's road test which was given to him by
the terminal's senior employee, Johnny Wooten. When
no other driver was available he would occasionally
drive a tractor, dropping a trailer at a customer's place
of business or picking one up.
In June 1978, Long secured a part-time job with an-
other local carrier, Dean Truck Line, as a dockhand and
city driver. Dean's terminal was located about 1-1/2
miles from Thurston's. The employees of Dean had been
represented by a union for several years, although Long
admitted that he was not a member.
Early in the morning of September 5, Long came to
work at Respondent's terminal and worked on the dock
handling freight. After lunch Filgo drove him to a cus-
tomer's place of business where he was to load tires on
one of Respondent's trailers. At or about 2 p.m., two
other of Respondent's employees came to the tire com-
' Dockworkers were also referred to as warehousemen.
pany and relieved him, telling him that Filgo wanted to
meet him outside the tire company's gate. Long proceed-
ed to Filgo's car where the terminal manager told him
that he was going to have to lay one man off due to a
lack of work and, since Long was the youngest dock-
worker, he was going to be laid off. Long was laid off
that day and, on the Company's termination notice, the
reason for his termination was typed as "Job Abolished."
Long admitted that, before he was laid off, "The freight
had slowed down some," but that it had not affected his
work, as he was the only full-time breakout man. Long
also testified that, the Tupelo to Memphis run was abol-
ished in the week that he was laid off, believing it to be
the day he was laid off. Wooten was the regular road
driver for the Tupelo to Memphis run, as each night he
left Tupelo at II p.m., drove to Memphis, a distance of
about 96 miles, 9 and returned at 4:30 a.m. The trailers
that were loaded and unloaded at Tupelo were destined
to and from all 40 terminals in the system.
Frances Oletta Webb had worked for Respondent in
Tupelo since August 1977 as an over, short, and damage
clerk, while also performing other office duties. ° Filgo
was her supervisor from the time of her hiring until he
left in October. Her desk was one of three in the large
office, which also contained the billing computer. Adja-
cent to the large office was a file room and private of-
fices for the terminal manager and the salesman. Webb
testified that on the day following Long's termination, or
the next day, she was standing "right" inside the file
room when Filgo was sitting at the computer talking on
the telephone that was on the rate desk. When asked by
the General Counsel to tell what she heard, she testified
as follows:
A. I heard him say "I got rid of the troublemak-
er."
There was a pause, and he says, "Donnie Long."
Then in a few minutes he said, "Well, he was
working part-time for Thurston-I mean for Dean
Truck Line," and said, "They're union and they
were putting this mess in his head" or "they were
putting him up to this." I heard that.
Q. Do you know who Mr. Filgo was talking to?
A. The only way I can tell you is when he got
off the telephone he turned to me, and he said, "Jim
said-something. I said, "Jim who," and he said
"Jim Tyner.""
b. Respondent's defense
Wooten testified that he was the road driver for about
a year and a half on the Tupelo to Memphis run. During
this period the freight fluctuated quite a bit with it being
light most of the time. He did not know that the run was
'There were four employees with less seniority than Long, but all four
were city drivers. Respondent's stated policy was to retain drivers over
warehousemen in the event of a layoff.
9 "Rand McNally Road Atlas" (1980 ed.).
"' Webb was an impressive witness; her testimony was uncontradicted,
and I credit it. She was also still employed by Respondent, further sup-
porting her credibility.
" Tyner was identified by Holscher as being the assistant to the vice
president or operations, Brantly, with an office in Charlotte.
1264
THURSTON MOTOR LINES, INC.
going to be abolished before the decision was made to
do so. He agreed that after the run was abolished team
road drivers from other terminals delivered freight to
Tupelo and to Memphis.
President Holscher testified that Long was not laid off
at his instructions, but at the instruction of the operations
department. He further testified that he knew Long was
terminated "because of [a] lack of work because of the
cutoff of a Memphis to Tupelo run."
c. Conclusion
In applying the precepts of Wright Line, a Division of
Wright Line, Inc., 251 NLRB 1083 (1980), it is evident
that the General Counsel has made a prima facie showing
sufficient to support the inference that Long's union ac-
tivity was a motivating factor in his termination.
As shown by Webb's uncontradicted and credited tes-
timony, Terminal Manager Filgo clearly reported to his
next in command, Assistant Operations Manager Tyner,
why he terminated Long. He terminated Long because
he was a "troublemaker,"' 2 as he had been working part
time for another Tupelo-based carrier, Dean Truck
Lines, whose employees were represented by a union,
and these union employees at Dean, Filgo believed, were
using Long as their activist at Thurston's terminal. There
is nothing in the record to show that Long was the
union activist in the Thurston campaign and Filgo's
guess that Long was the spearhead was probably incor-
rect. However, Filgo believed this to be so and terminat-
ed Long because of this incorrect assumption of such
union activity.
Respondent's defense for Long's termination as ex-
pressed by Holscher was for a very specific reason:
There was a lack of work due to the cutoff of the Mem-
phis to Tupelo run. However, the Company presented
absolutely no records to support its contention that the
freight hauled between these two points was light or that
it was decreasing.
It also must be borne in mind that Memphis was just
one of the 40 terminals to which the Tupelo terminal
shipped freight and there is nothing in the record to
show that it was a major receiver of freight outbound
from Tupelo. In fact, the record shows that Wooten
pulled only one trailer up to Memphis each night, and
then pulled only one back. Many more trailers than one
were loaded each day out of the Tupelo terminal. Re-
spondent does not contend that freight tonnage from
Tupelo to Charlotte, or Atlanta, or Richmond, or any
one of the many other terminals was light, nor does it
offer any documentation to support such a theory.
The only document in the record that can reflect any
light on such shipments was General Counsel's Exhibit
19, which was a summary sheet of outbound and in-
bound revenue for the Tupelo terminal for the years of
1974 through early 1980. This summary was prepared at
Holscher's request in the ordinary course of his execu-
tive duties, not for this hearing. It has two halves, the
12 The term "troublemaker" has an established meaning in the annals of
labor relations as a term applied by employers to individuals who are at-
tempting to enlist other employees into engaging in union or concerted
activity. Garrison Valley Center. Inc., 246 NLRB 700 (1979): Passaic
Crushed Stone Co.. Inc.. 206 NLRB 81 (1973)
top half setting forth outbound revenue and the bottom
half inbound revenue. t It shows totals for the years of
1974 through 1979. Each year, as explained by Holscher,
is divided into thirteen 20-day periods.
An examination of these yearly revenue totals shows
that the Tupelo terminal had a healthy growth in its
annual revenue rising from S436,774 in 1974 to
$1,002,959 in 1978, representing a percentage growth of
5.80 in 1975, 39.85 in 1976, 19.43 in 1977, and 29.95 in
1978. This is not to say that there was a percentage in-
crease in each and every period. There were in each
year, including 1978, periods in which the revenue de-
creased, as well as increased. However, there is nothing
in the record to show that any employee was ever laid
off bccause of a decrease in revenue. The only testimony
on the issue of any other employees being laid off prior
to Long was that of city driver Dan Davis. Davis testi-
fied that Long was the only employee he knew of who
had been laid off since Davis was hired in September
1977. This was uncontradicted.
A review of the outbound revenue periods for 1978
also shows that there were decreases in some periods, as
well as increases. In the second period, there was a de-
crease of $9,024 from the revenue produced in the first
period. There was also a decrease of $14,457 in the sixth
period, and a decrease of $6,782 in the seventh period.
However, the record fails to show that any employee
was laid off in the period following these downturns in
revenue. The eighth period, which ended on August 12,
showed an increase in revenue of $8,970 over the sev-
enth period. Long was laid off on September 5, a Tues-
day, which was in the last week of the ninth period, and
necessarily before the revenue could be computed for the
ninth period, as that period would not end until Septem-
ber 9. Thus, the only relevant record of Respondent pro-
duced at the hearing shows that at the time Long was
laid off the Tupelo terminal had had an increase in reve-
nue of $8,970 over the prior period.
An examination of General Counsel's Exhibit 17, the
weekly payroll sheets for the Tupelo terminal, also indi-
cates that in the weeks prior to Long's layoff there was
no slackening of freight handled by the terminal's em-
ployees. The five payroll periods prior to Long's termi-
nation show that the total number of hours worked by
Respondent's hourly paid employees, including office
employees, were as follows:
8/5/78
8/12/78
8/19/78
8/26/78
9/2/78
532.0
583.9
595.2
602.2
606.1
Thus, these hours of service would indicate that there
was no slackening of work at the Tupelo terminal prior
to Long's layoff on September 5, but that the workload
was increasing as the employees' hours of service stead-
ily climbed for 5 consecutive weeks.
"' Holscher contended that the important factor in determining a termi-
nal's profitability to the Company was its outbound freight, as only out-
bound freight represented revenue generated by that terminal.
1265
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From the foregoing I conclude that Respondent's
stated reason for Long's discharge was a pretext. Re-
spondent had union animus as shown by the terminal
manager's threat that Respondent would close the termi-
nal down if a union was voted in. Also, Respondent had
a long history of union hostility and violations of the Act
as set forth in six prior cases.4 After the Union filed its
petition for an election on August 24, Respondent had
full knowledge that the Union was seeking to represent
its employees at Tupelo. When Filgo looked around for
the union "troublemaker" he selected Long because he
was concurrently working part time for a nearby union
truckline. The terminal manager then precipitately termi-
nated Long, a good employee as admitted by Holscher,
telling him it was for a lack of work. Holscher testified
that it was because of the abolition of the Tupelo to
Memphis run, yet Wooten, who had been making that
run for a year and a half, was not even told beforehand
that the run was going to be abolished.
No records were produced by the Company to show
that freight was lacking in the Tupelo to Memphis run,
or that freight was decreasing in Tupelo's relationship
with the other 40 terminals. The only company records
reflecting on the increase or decrease of tonnage at
Tupelo showed that prior to Long's termination the ter-
minal had maintained an overall continuing increase in
producing outbound revenue, and that even in the work
period prior to Long's discharge there had been a
healthy increase in revenue. In keeping with this increase
in revenue, which shows that there was no slackening of
work, is the fact that the hours of work of the hourly
paid employees constantly increased in each of the 5
weeks prior to Long's discharge. Accordingly, on all the
evidence of record, I find that Long was discharged on
September 5 because of his being selected as the union
activist, and that his discharge was to nip the campaign
in the bud. The stated reason of lack of work was a pre-
text to conceal antiunion motivation for his discharge.
Such discharge violated Section 8(a)(3) and (1) of the
Act.
5. Solicitation of grievances
Paragraph 8 of the amended complaint alleges: "Re-
spondent by its supervisor and agent, Franz Holscher, on
or about September 27, 1978, at its Tupelo, Mississippi,
location, solicited its employees' grievances and implied
that it would rectify them." Three employees testified in
support of this allegation, Larry Johnson, Brooks Steele,
and Dan Davis. Johnson testified that some of the driv-
ers had called Holscher or "somebody" in Charlotte and
stated that they had a "bunch of grievances," and if
these could be worked out maybe the Union could be
kept out. Holscher did appear at the terminal in the eve-
ning sometime before the election, unannounced, and
conducted a meeting in the terminal office after first
sending Filgo home. This was the first time Holscher
had met with the employees. He told them he under-
stood they had some problems and then asked the men
' Thurston Motor Lines, Inc., 149 NLRB 1368 (1964): 159 NLRB 1265
(1966); 166 NLRB 862 (1976); 168 NLRB 428 (1967); 180 NLRB 944
(1970), enfd. as modified 439 F.2d 1202 (6th Cir. 1971); 237 NLRB 498
(1978).
what their grievances were. Brooks Steele told him to
get rid of Filgo and give the employees a new terminal
manager. Holscher replied that he could not do that, but
that he might bring in another man and put him between
Filgo and the employees.
Steele and Davis testified that Holscher told the em-
ployees he had heard they were having problems,
wanted to know what they were, and had come to help
straighten them out. All employees said they were
having trouble with Filgo. Thereafter, an open discussion
took place. Some employees, including Davis, com-
plained about the condition of the terminal's parking lot,
that they could not use the forklift truck as it was broken
down, and that Filgo chewed out the employees in front
of other employees. Holscher then told the employees
that he was not aware of these matters, and they were
not something he could straighten out over night, but he
would try to help them.
According to Holscher, he came to the terminal in
September at the request of some drivers who had called
him long distance. They told him that they had some
"problems," and they thought if he came to Tupelo the
problems could be worked out. At the meeting Holscher
asked the employees what they wanted to talk about.
When one driver said, "Look, we don't want a union
here," Holscher told him, "Well, that's not what I'm
here for. I'm here to talk about problems." Various sub-
jects were then brought up with virtually every man
present discussing some problem in the 2- to 2-1/2-hour
meeting. Among the subjects he recalled being brought
up were the parking lot and a manually operated oil
pump. One of the employees spoke up and said, "Well, if
you would get that son-of-a-bitch in the corner office off
his back, things would be different." Holscher then told
the employees that he had not come down to fire Filgo,
and that he had come to talk about problems. Holscher
admitted that he did subsequently fire Filgo, although
the record does not show the date. He also admitted that
he transferred Craig King to Tupelo as the operations
manager prior to the election. '5
The record is clear that prior to the election Holscher
was asked by some employees to come to Tupelo to
meet with them to try to work out some problems, some-
thing he had never done before. The president did come,
excluded the terminal manager from the meeting, and ad-
mittedly told them that he was there to talk about prob-
lems. He then engaged in a 2- or 2-1/2-hour "dialogue"
with these employees. While Holscher carefully referred
to the subjects discussed at the meeting as problems they
were also grievances by any standard of labor relations. 16
I credit Davis' testimony that Holscher said he would
try to help them straighten out these matters, as he was
an impressive witness and had the best recall of that
meeting. Even assuming that Holscher did not say he
'" As previously noted, G.C Exh. 7 shows that Filgo never signed the
weekly payroll sheets after October 7, and that King commenced signing
the weekly payroll sheets on October 14 and thereafter.
I A grievance is "[alny complaint by an employee or by a union . . .
concerning any aspect of the employment relationship" "Roberts'
Dictionary of Industrial Relations," The Bureau of National Affairs, Inc.
(rev. ed 1971).
1266
THURSTON MOTOR LINES. INC.
would adjust their complaints, certainly they had a logi-
cal right to believe that this top executive of the Compa-
ny, who had come a distance of 580 miles to hear their
complaints, and who had listened sympathetically to
them for over 2 hours at a meeting he called, would
remedy the bulk of their complaints. As the Board said
in Reliance Electric Company, 191 NLRB 44, 46 (1971):
Where, as here, an employer, who has not previ-
ously had a practice of soliciting employee griev-
ances or complaints, adopts such a course when
unions engage in organizational campaigns seeking
to represent employees, we think there is a compel-
ling inference that he is implicitly promising to cor-
rect those inequities he discovers as a result of his
inquiries and likewise urging on his employees that
the combined program of inquiry and correction
will make union representation unnecessary.
Holscher did shortly thereafter bring in King as a buffer
between the men and the terminal manager, and he did
grant their chief complaint, that of firing Filgo. He ad-
mitted on cross-examination that the complaints lodged
by the employees against Filgo were "a contributing
factor" in discharging Filgo.
In view of the above, I find that Respondent coerced
employees in violation of Section 8(a)(1) of the Act by
its solicitation of grievances and its implied promise to
remedy them. Raley's Inc., 236 NLRB 971 (1978).
6. Threats of reprisal
Paragraph 9 of the amended complaints recites: "On
or about October 20, 1978, Respondent, acting through
Franz Holscher, at its Tupelo, Mississippi, location,
threatened its employees with unspecified reprisals be-
cause they selected the Union as their collective-bargain-
ing representative."
On October 19, the day before the election, Holscher
was at the Tupelo terminal. While there he told the em-
ployees that he was going to have dinner at the Sheraton
and if any employee would like to join him at dinner he
would be happy to have him as his guest. That evening
all of the drivers, except Wooten, joined him at dinner,
and as Holscher described it, "[w]e just had a good
time." The election was not discussed, but Holscher ad-
mittedly told them to vote their conscience as to what-
ever was best for them.
The representation election was conducted on the fol-
lowing morning. After the ballots had been counted the
Board agent announced to the employees who had as-
sembled on the dock that the Union had received a ma-
jority of the valid votes. Steele testified that Holscher
came out on the dock and said to the employees, "You
all lied to me. Everyone of you have lied to me" and
then said something like, "You all will take it as the
chips fall." He then turned and left, and Steele testified,
"He was mad." Davis testified that Holscher was red
faced and "said we'd lied to him and let him down." All
Johnson could recall was that Holscher said, "Let the
chips fall where they will."
Holscher admitted that he was disappointed after the
election results were announced. When asked if he had
some conversation after the votes were counted, he testi-
fied as follows:
A. Yes, I did. I was out on the dock and all the
fellows were standing around.
I have to be perfectly honest, I was disappointed.
I was not mad any more than I'm mad right now
because I was disappointed because the fellows had
asked me down in good faith long before the union
election took place to air their problems. I think
they were referred to as grievances. I call them
problems.Then when I came down and did the
things I thought I could do, and then they turn
around and voted for the union, I would be un-
truthful to say that I was not disappointed. I was
disappointed.
Q. Did you call them liars?
A. No sir, I didn't call them liars.
Q. What did you say?
A. I don't recall the exact words. I think I said
this, "I was disappoint[ed] with the outcome. You
fellows led me to believe that this was not what
you wanted, but now you made the decision. You'll
just have to let the chips fall where they will."
I find that in the context in which it was made,
"You'll just have to let the chips fall where they will"
Holscher's statement was a thinly veiled threat of repris-
al against the assembled employees for their having
voted for the Union. Holscher was obviously angry as he
believed that the employees had betrayed him because in
his opinion they had led him to believe they did not
want a union. The clear implication of the president's
words was that the employees would pay for their be-
trayal for having selected the Union. Such a threat vio-
lated Section 8(a)(1) of the Act.
B. Credibility
At several intervals in the case there were testimonial
conflicts between the testimony of the General Counsel's
witnesses and Respondent's witnesses. The General
Counsel's bargaining unit witnesses, with the exception
of Brooks Steele, "; impressed me as sincere, young, mini-
mally educated truckdrivers, telling the truth as best they
could remember it, and I credit them generally. Also,
they withstood long and searching cross-examination,
while the hearing was conducted under the rule of exclu-
sion of witnesses. Much testimony was produced on the
subject of whether drivers received certain documents
and took certain tests when hired by the Company.
While these are peripheral matters they do bear on credi-
bility and will be briefly reviewed.
It was the Company's position that when a driver was
hired at Tupelo, he received four different items for
which he would sign a printed form receipt, as set forth
below:
Terminal
Date
" SteCle's crediibir is resiewcd in sec IV. D. 1, belo
1267
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I hereby acknowledge receipt of the following:
1. Rules Governing Employment With Thur-
ston Motor Lines, Inc.
2. Instructions Applicable to Drivers of Motor
Vehicles
3. I.C.C. Safety Rules and Regulations.
4. Accident Report Kit.
I agree to familiarize myself with all of the rules
and regulations and to abide by them. I further un-
derstand that my failure to learn these rules and to
abide by them will result in dismissal from the
Company.
Signed
Witness
Copies of this form, Respondent's Exhibits 4, 9, and 13
were admittedly signed by Johnson, Davis, and West-
moreland. However, Johnson and Westmoreland denied
receiving items 1, 3, and 4. As to item 2, Johnson and
Westmoreland stated they merely received some kind of
"dock" rules concerning such things as drinking and
gambling on the premises, but not driving rules. Davis
testified that he did not remember receiving items I and
2, but stated flatly he did not receive items 3 and 4. Item
3 was in evidence as General Counsel's Exhibit 5. It was
am imposing looking red booklet, three-fourths of an
inch thick by 4 by 6 inches captioned "Federal Motor
Carrier Safety Regulations." When shown to Davis, he
testified that he first saw one 2 weeks prior to the date of
his testimony when Terminal Manager Crump gave him
one. This was uncontradicted by Crump.
Respondent's counsel strenuously cross-examined these
witnesses as to why they would sign a receipt for materi-
al that they did not receive. They all stated that they
signed whatever documents were placed before them
when they were hired, as they were told that those
signed documents had to be sent to the main office in
Charlotte. Office employee Brenda Ellott's name appears
to be signed on Johnson's receipt as a witness, and office
employee Thomas Jarrell's name is contained on Davis'
and Westmoreland's receipts as a witness. Neither of
these employees testified. It is also significant that Re-
spondent did not produce at the hearing any of the three
other documents which it argues the drivers received. I
credit these drivers that they did not receive the docu-
ments for which they signed. It is an indisputable fact of
American life that many Americans routinely sign what-
ever documents are placed before them, without reading
them, and on many occasions of importance to them,
such as when buying a house or a car, making a loan, or
applying for a job. t8'
Respondent's witnesses did not impress me as persons
in whose testimony I could have confidence as to its ac-
curacy and reliability. Rather, I received the strong im-
pression that they were advocates trying to furnish an-
swers that helped their cause, rather than trying to state
'" There was also voluminous testimony as to whether employees took
a drivers test and a written test when they were hired. They did sign a
certification form stating that they took the tests. It is not necessary for
the purposes of this case to resolve these matters.
the facts as they actually remembered them. An example
of such evasive testimony by Holscher is shown below
as he was being questioned by the General Counsel pur-
suant to Rule 611(c), of the Federal Rules of Evidence
about Respondent's policy regarding unions:
Q. The Company does have a policy of fighting
to keep the Union out of their terminals, doesn't it?
A. Does the Company have a policy? You're
talking about a formal written policy?
Q. I don't mean written, but a formal policy?
A. I don't know of any formal policy to keep a
Union out.
Q. Your Terminal Managers do have instructions
to notify headquarters as soon as they have any
knowledge of a Union campaign?
A. Do they have written instructions? I don't
recall. I'm sure they do not have written instruc-
tions.
Q. They have standing instructions to notify
headquarters as soon as they find out about a union
campaign, don't they?
A. I would think if they were good managers, if
they had a campaign, they would let us know.
Q. They have instructions from headquarters to
do that?
A. Well, maybe you know that. I don't.
Q. Well, I'm asking you. Don't they have instruc-
tions along those lines?
A. In writing?
Q. Any kind?
A. Now, wait a minute. Before you tried to pin
me down on written instructions on speed. Now,
you want me to be lose on this sort of thing, and
I'm not going to do it.
Q. I want to know don't your Terminal Manag-
ers have standing instructions to report to their
headquarters at the first knowledge that they have
of the employee's involvement with the Union?
A. I'm saying to you this, and I'll answer this
way, that if they hear about it, and they do have
problems, they would notify me.
Q. Do you know whether they have standing
instructions from [the] home office to so notify you?
A. I think he'd be foolish if he didn't notify me. 9
An example of Safety Supervisor Edgar Sims' unrelia-
bility is his answer when questioned about when he first
learned of the employees' union activity at Tupelo: "I
probably heard it over a period of time, but due to the
fact that we don't get involved in that, we hear very
little thing[s], if anything, with other than what we do in
our job." Sims' attempt to convey that he heard very
: In Thurston Motor Lines, Inc.. 237 NLRB 498, 500 (1978), the Board
found Respondent's general policy toward unions to be as follows:
D. J. Thurston, Jr., Respondent's president and chief executive of-
ricer, has seen his Company through "many, many" organizational
campaigns since 1932. Admittedly, it is Company policy "to fight
quite vigorously to keep itsl terminals from being organized." Ac-
cording to his testimony. the terminal managers have standing
instructions to notify headquarters as soon as union campaign arises.
Thurston was still the owner of Respondent at all times material hereto.
1268
THURSTON MOTOR LINES. INC.
little about company activities outside the safety depart-
ment is in stark contrast to Holscher's position as to how
company news travels about the truckline. When the
president was asked how he found out about a certain
matter at Tupelo, the hiring of part-time dockworkers,
Holscher replied that he did not know how he found out
about it, but that "[t]he trucking industry is the world's
greatest rumor vine." As he stated, a road driver could
hear something in Tupelo, and the incident would be in
New York by noon. Certainly Sims, with his safety su-
pervisors patrolling the vast system of Respondent day
and night, was privy to Respondent's rumor vine, and
learned of many matters concerning Respondent's busi-
ness other than safety matters.
C. The Discharge of Larry W. Johnson
1. The General Counsel's version
Johnson was hired on July 19 as a city driver by
Filgo. During his first 2 weeks, he worked on the dock
loading trailers. Thereafter, he drove tractor-trailers
picking up and delivering freight, although he continued
to work on the dock for about 2 hours each day like the
other drivers did.
Johnson testified that on the afternoon of November 7
he had picked up freight at the town of Belmont, and
was driving the tractor-trailer back to the terminal on a
hilly, crooked road. He noticed in his mirror several
times that a car was "tailing" him. He pulled in on a
weigh station 3 or 4 miles later, was weighed on the
scales, and then pulled on the parking lot of the adjoin-
ing dairy bar to get a sandwich. The tailing car drove
by, turned around, and came back. Johnson saw that it
was Edgar Sims, Respondent's safety supervisor.2 Sims
checked Johnson's driver's license and then gave the
truck a routine equipment check. He asked Johnson if his
speedometer worked, and Johnson stated that it did.
Johnson asked Sims if he had done anything wrong and
Sims told him that he had been speeding a little bit down
hills. During the inspection Johnson told Sims that there
was some talk that Respondent might reroute the freight
out of Tupelo because the employees had voted the
Union in, and asked him if he thought they would ever
get a contract. Sims replied that he was not concerned
with the Union, and that his business was safety.
Johnson returned to the terminal and made a short run
to another customer. Upon arriving at the terminal at or
about 5 p.m., he told Craig King, the new operations
manager, that Sims had checked him and that he was
going about 60 to 62 miles per hour when he dropped
off hills. King then told Johnson that he might get a
letter of reprimand or that he might hear nothing about
it.
On the next morning, Johnson reported to the job and
drove his tractor-trailer doing routine pickup and deliv-
ery work until about 4 p.m. when he was called to the
20 Johnson had seen Sims at the terminal one time about 3 weeks
before this meeting The only other driver that Johnson had ever heard
of being checked by Sims was Dan Davis. Davis told Johnson that Sims
had stopped him on the road a week or 10 days prior to this encounter of
Johnson with Sims. No observation report was placed in the record as to
Sims' observation of Davis
office. Here he met King, who told him that it was an
embarrassing situation as he had only been there about
30 days and had received a call from Thurston, Respond-
ent's owner. King then told Johnson that he had two
choices, he could resign and nothing would go against
his record, or they would terminate him, as they had him
on radar, and he had been charged with going 67 miles
per hour. King then told Johnson if an employee was
caught driving over 65 miles per hour he was automati-
cally terminated. Johnson told King that all of the driv-
ers speed and King replied that sometimes they get sus-
pended for a week. Johnson replied that he thought it
was unfair for the Company to fire him the first time he
was caught speeding, and King replied, "I don't ask Mr.
Thurston questions."
Johnson testified that nothing had ever been said to
him about Respondent's speeding policy, and that to his
kn wledge no Thurston driver had ever been disciplined
for speeding prior; to his termination. His termination
notice, dated November 8, 1978, stated under comments:
"Terminated, as Company policy states speeding in
excess of 65 mph will be grounds for termination."
2. Respondent's defense
Edgar Sims had been the safety supervisor of Re-
spondent for over 11 years, and had five employees in
his safety department. Three safety men patrolled on a
daily basis with one patrolman working out of Nashville,
and one out of Wilson, North Carolina. Sims testified
that no one tells the safety patrolmen where to go, as
they select their own area to patrol. He testified that he
and other safety men had patrolled the Tupelo area in
past years, but did not recall when, or if, a Tupelo termi-
nal driver had ever been stopped before the election.
When a driver is stopped on the road by a safety man,
an observation report is made out for the safety depart-
ment whether the driver is speeding or not. No observa-
tion reports were produced by Respondent to show that
any Tupelo drivers had ever been observed prior to the
election. Sims denied being in the Tupelo area because
the employees had voted for union representation, stating
that he was merely going from Muscle Shoals, Alabama,
to Tupelo. On cross-examination Sims reluctantly ad-
mitted that he "probably knew about the employees'
union involvement at the Tupelo terminal prior to the
election."
Sims testified that on November 11 he had stopped to
get a coke at Belmont when one of Respondent's trucks
came by at what he observed to be a fast rate of speed.
He then gave pursuit along the two-lane road, that was
crooked and hilly, putting the unit under observation.
Sims determined that the unit was running at 67 miles
per hour as it would come down off hills. He testified
that he checked the unit's speed by the speedometer on
his patrol car, which is calibrated. At the time he had a
TDS radar machine on his car, but unexplainably did not
use it. As the driver pulled off the scales, Sims pulled in
front of the tractor-trailer.
Sims testified that he did not know who the driver
was, and that "out of [the] blue sky" the driver said to
him that they had to get rid of the Union. Sims replied
1269
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he was in the safety department and had nothing to
do with such matters. Sims then reviewed his license, in-
spected the truck, and filled out an observation report.
He then told Johnson he could return to the terminal.
Nothing was said about speeding except Sims said, "You
were getting it done down through that crooked road." 21
Sims then followed Johnson to the terminal where, "I re-
ported it to the terminal manager and gave him a copy
of the observation report and requested under Respond-
ent's rules that the driver be terminated." Sims later testi-
fied that he instructed Crump to discharge Johnson.
Sims contended that the Company had a policy of
automatic termination of a driver who at any time was
caught driving equipment 65 miles per hour or over, and
that this policy had been in effect during the 11 years he
had worked for Respondent. He admitted that the safety
department does not notify the drivers directly about the
over 65 speeding policy, but testified that he knew that
Tupelo employees had been informed of it at safety
meetings "because I attended the meetings." When
pressed, he admitted he attended one meeting at Tupelo,
and this meeting, he agreed, was held on February 15,
1979.
On cross-examination Sims admitted that the only
printed rule that Respondent had on speeding was con-
tained on page 10 of General Counsel's Exhibit 2,
"Driver Rules." This document, dated August 1971, con-
tained 16 pages of specific rules on driving, care of
equipment, and safety. The only rule on speeding was
contained in item 3, page 10, entitled "Speed Limit"
which reads as follows:
Speed Limit: At no time will a vehicle be operated
at a speed that will not permit the driver to stop
within the distance of his clear vision. State and
local speed laws must be obeyed. A driver must not
drive faster than fifty-five (55) miles per hour. This
speed must be reduced in keeping with conditions
on slippery roads, in fog and rain, when approach-
ing a curve, intersection, school, school bus, towns
and other traffic conditions. The practice of letting
a unit pick up speed on a downgrade in order to
make the next hill, with a minimum of gear shifting
is strictly forbidden. Speed limits apply when you
are running for a hill just as they do on level
ground [G.C. Exh. 2].
During the course of Respondent's direct examination.
of Sims, Respondent's counsel had him identify a stapled
together packet of observation reports. These reports,
made by various safety supervisors of the Company,
were received into evidence as Respondent's Exhibit 20.
Sims testified that he collected these documents at coun-
sel's request from the individual driver's file, and that he
knew that each of the individuals named on the docu-
ments had been fired for speeding in 1978, 1979, and the
first 2 months of 1980.
An examination of Respondent's Exhibit 20 discloses
that there are 25 observation reports in the packet. How-
2 Sims testified that it was company policy not to tell a driver out on
the road how fast he was charged with driving so as to avoid arguments
on the road.
ever, these are not observation reports on all 25 individu-
al drivers, but only 19, as 6 of the reports contained
therein are photocopies of some of the original ink-writ-
ten reports. An original and a duplicate were submitted
for employees Earl Black, Charles Eller, John C. Ellis,
and Bob Herrington, and an original and two duplicates
were submitted for Preston Davis. An examination of the
19 valid reports show that in 1978 4 drivers were written
up, 1 each in May, June, August, and November (John-
son). In 1979, 13 drivers were written up, with 3 in July,
the first of whom was Tupelo driver Brooks Steele, 3 in
August, 6 in September, and I in October. In 1980, one
driver was observed in January and one in February. Of
these reports 3 had been completed by Safety Patrolman
Paul Jump, 13 by W. C. Washam, and 3 by Sims. Each
of these reports listed the speed of the vehicle as 65 miles
per hour or greater. Sims further testified that there were
"separation" notices for each discharged employee in the
ex-employee's file in Charlotte. However, no termination
notices were produced by Respondent for any drivers
other than those of Johnson and Steele.
According to Holscher, in the 11 years he had been
with the Company, it had always had a 55-mile-an-hour
speed limit, and, "[W]e have always had in excess of 65
is a dischargeable offense." Holscher at first testified that
the Company had Drivers' Rules which include the
Company's policy on speeding. When shown General
Counsel's Exhibit 2, Driver Rules, Holscher pointed to
the sentence, "A driver must not drive faster than fifty-
five (55) miles per hour" as the rule on speeding. When
pressed if the Company had any other written policy on
speeding, Holscher pointed to some general clauses such
as "a driver is supposed to drive in a safe manner at all
times, and if in doubt, play safe." However, he was
unable to point to or produce anything in writing as to
the 65-mile-per-hour policy and finally admitted that he
was unable to do so.
The president did testify that the employees are told of
the company policy on speeding "all the time" by safety
department employees who conduct safety meetings for
drivers at the various terminals. Holscher admitted that
he had never been to a safety meeting in Tupelo and that
he had no personal knowledge that Respondent's Tupelo
employees ever received instructions or were informed
of Respondent's policy for drivers who exceed 65 miles
per hour.
As to Sims, Holscher testified that he sets his own
schedule as to what areas he will patrol, and goes to
wherever he thinks Respondent is having the greatest
number of problems. He admitted that he had no knowl-
edge of any problems in the Tupelo area.
3. Conclusion
It is well established that an employer may terminate
an employee for any reason, good, bad, or indifferent,
without running afoul of the Act, provided it is not moti-
vated by unlawful considerations. In the instant case, I
find that Respondent was motivated by unlawful consid-
erations and that the discharge was pretextual.
While it is true that Respondent did not have specific
knowledge that Johnson had engaged in union activities
1270
THURSTON MOTOR LINES, INC.
prior to his discharge, Respondent did know that on Oc-
tober 20 a majority of its employees had voted for the
Union and against the Company. President Holscher was
upset with the Tupelo employees, as he believed that
they had betrayed him, and he ominously warned them
that they would have to let the chips fall where they
would. So, 10 days later, for the first known time in the
Tupelo terminal's history, a driver, Davis, was stopped
on the road, and checked by Respondent's safety super-
visor. About 10 days after that stoppage, the safety su-
pervisor again appeared in the Tupelo area, saw a Thur-
ston truck, and gave pursuit. Although Holscher testi-
fied that Sims would go where he thought Respondent
was having the greatest number of problems, Sims never
claimed that there were any problems with Tupelo driv-
ers, nor stated why he was in the Tupelo area when he
stopped Davis or Johnson. Respondent did have a prob-
lem, and the problem was that the employees had voted
for the Union as their collective-bargaining representa-
tive, and Respondent set out to undermine that bargain-
ing agent.
The record is clear that Johnson and the other Tupelo
drivers, as of November 7, had no knowledge of Re-
spondent's alleged rule or policy that employees were
automatically terminated if caught driving in excess of 65
miles per hour. Thus, when Johnson returned to the ter-
minal and talked to King about the incident, he had no
reason to know that he had committed a dischargable of-
fense. Sims had not told him so out on the road, and
King did not tell him so, merely telling him that he
might get a letter of reprimand or might not hear any-
thing about it at all.
If Sims' testimony was correct that such speeding
means automatic termination, Johnson would have been
terminated that evening by the manager. However, he
was not terminated or suspended and the next day took
his truck out and did his regular day's work as a pickup
and delivery driver. It was on the second evening after
being stopped by Sims that he was told by King that he
had received a call from Thurston, Respondent's owner.
Thurston's directive to King was to offer Johnson a
"Hobson's" choice-that he resign or he would be termi-
nated. The testimony of Johnson as to Thurston's direct-
ing his termination was undenied, and shows that John-
son was not discharged at Sims' instructions on Novem-
ber 7, but that he was discharged by the order of Re-
spondent's owner himself on November 8.
Respondent's failure to produce any records to show
that it had a rule requiring termination for exceeding 65
miles per hour is accentuated by the fact that it did have
two written rules that required the immediate termina-
tion of a driver. On page 1 of its Driver Rules, it states:
(a) Three chargeable accidents against any driver
within a period of twelve months shall result in im-
mediate termination of his employment with Thur-
ston.
(b) Failure of any driver to report an accident
shall result in immediate termination of his employ-
ment with Thurston.
Certainly, if Respondent had a 65-mile-per-hour termina-
tion rule, it would have set it forth in some written form
so that all employees would have been forewarned, just
as it forewarned them of discharge for having three
chargeable accidents and for the failure to report an acci-
dent.
As previously stated, I do not find that the 25 observa-
tion reports, put into evidence as Respondent's Exhibit
20, establish that 19 drivers were terminated for exceed-
ing 65 miles per hour in 1978, 1979, and 1980. The most
these reports establish is that observations were made of
these drivers, not that they were terminated. Also, it is
informative that only three reports were made in the first
10 months of 1978 before the Union won the election
and before Johnson was written up.
I am convinced and I find on the entire record, and
for the reasons set forth above, that Respondent's assert-
ed reason for Johnson's discharge on November 8 was
advanced as pure pretext to mask an unlawful motiva-
tion, and that the inference can fairly be drawn that
Johnson was discharged because of the employees' elec-
tion of the Union as their collective-bargaining repre-
sentative. Such discharge violated Section 8(a)(3) and (1)
of the Act. Shattuck Denn Mining Corporation (Iron King
Branch) v. N.L.R.B., 362 F.2d 466 (9th Cir. 1966); Ameri-
can Tara Corporation, American Carbon Paper Division,
242 NLRB 1230 (1979); Stafford Trucking Inc., 154
NLRB 1309 (1965).
D. The Discharge of Brooks L. Steele
1. The General Counsel's version
Steele had been hired on March 23, 1976, by Terminal
Manager Filgo as a city driver. He testified that he saw a
company safety man at the terminal on three separate oc-
casions. The first time was in 1976 at the old terminal
when he saw a safety man inspecting, and red tagging,
trucks. The second time was shortly after the new termi-
nal opened when he saw Sims for the first time as Sims
was standing on the dock. The third occasion was on
February 15, 1979, at a safety meeting when Sims and
another safety man came to the terminal, showed a
safety film, and discussed some aspects of safe driving
such as getting in and out of a truck without slipping and
falling. Steele testified that he could not recall Sims
saying anything about speeding at that meeting and that
up to that time he had never seen a Thurston safety pa-
trolman out on the road. He was then further questioned
by the General Counsel:
Q. Did you have any knowledge as to whether
they patrolled the road or not?
A. No, sir, we was never told about it. We was
never warned about them being on the road or any-
thing.
Q. Did you ever find out about safety patrolmen
being on the road?
A. Not until Mr. Sims pulled me over that day.
Q. Did you know anything about it before he
pulled you over?
A. No, sir, I didn't.
Q. Had you ever heard anything about it?
1271
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. No, sir. I had never heard of him ever pulling
a road driver over.
Q. Until when?
A. Until he pulled me over. Until after I got back
into the terminal that day and the next day.
Q. You don't know whether he had pulled any
other drivers over or not?
A. No, sir.
On cross-examination, Steele again denied that he had
ever heard that a safety man had the authority to stop a
driver on the road. However, on being shown his pre-
hearing affidavit, dated December 18, he agreed that at
one time he had asked Filgo if a safety man could stop a
driver, and Filgo said he could. Steele also admitted that
he knew months before he was fired that, if a driver was
caught speeding over 65 miles per hour, he would be
fired. He knew this because the firing of Johnson for ex-
ceeding 65 "was all over the terminal."
Steele's insistence on direct that he had no knowledge
that Thurston safety men patrolled the highways and
that he only learned of it when Sims pulled him over on
July 17, 1979, is contradicted by his admission on cross-
examination that Filgo had previously told him that
safety patrolmen had such rights. Also, his statement that
he did not know that Sims ever pulled any other driver
over is contradicted by his testimony that when Johnson
was fired his firing was a big topic of conversation for
all employees at the terminal. It is incredible to believe
that in the discussion of Johnson's discharge in Novem-
ber by all the drivers Steele would not have learned that
Sims had pulled Johnson over for speeding. Because of
the numerous contradictions in Steele's testimony, I do
not find him to be a credible witness on contested evi-
dence.
On July 17, 1979, Steele was returning from his regu-
lar daily run to Corinth, Mississippi, a distance of 50 to
55 miles from Tupelo. He testified that it was around 3
p.m. and traffic on the two-lane highway was heavy due
to the fact that employees in two or three factories in
Corinth were changing shifts. South of Corinth, Steele
stopped at a roadside park, used the restroom, and did
some paperwork for about 10 minutes. He testified that
he was in no hurry because he had from 3 to 5:30 p.m. to
drive the 55 miles to the Tupelo terminal.
Steele then got in his truck and drove about 4 or 5
miles when he noticed in his mirror that there was a car
behind him with a "speed gun" on the dash board. When
he saw the speed gun, thinking it was a highway patrol
car, he checked his speedometer and saw that he was
going 50 miles per hour. By that time Steele was going
up hill and the trailing car pulled around his unit and
flashed a sign that read, "Thurston Safety Patrol." Steele
pulled over and Sims and a passenger told Steele they
were going to give him a routine truck check. Upon
completion of the check, Sims told Steele that he would
probably see him the next morning. Steele then drove his
unit to the terminal, told Crump and King about the inci-
dent, and punched out at or about 6 p.m.
On the following morning, Steele punched in at 8:30
a.m., loaded his truck, and saw Sims and the other safety
man drive into the terminal and stop at the gas pump.
Crump went over and talked to Sims as Steele gave his
truck its daily checkup. Steele then carried his daily
report into the office and the terminal manager and the
safety men got in a car and left the terminal.
Steele made his regular run all day, returned to the
terminal, and unloaded his truck. On punching his time-
card, Crump told Steele that he wanted to see him. The
terminal manager proceeded to tell Steele that Sims said
he had been speeding. Steele denied that he had been
speeding and said Sims was a liar. Crump said he had
only been at the terminal a short time and had not been
filled in on all the rules, but Steele was terminated.
Steele testified that he could not have been speeding be-
cause there were cars in back of him and in front of him
and that he had no reason to speed because he had over
2 hours to drive the 55 miles from Corinth to Tupelo.
Steele had a good driving record with Respondent. At
the end of each of his 3 years with Respondent he had
been awarded uniform pants and shirts for safe driving.
By letter dated May 1, 1979, from the safety director, he
was notified that he had completed 3 years of safe driv-
ing as of March 23, 1979, and that he would receive in
addition to the uniform items a shoulder patch and safety
award pin.
2. Respondent's defense
Sims testified that on July 18, 1979, he and Safety Man
Bill Talbert were going to patrol on Route 72 in the
Corinth area. 22 They were unable to secure a motel in
Corinth, so they drove south to a small motel on Route
45, The Oasis, where they secured rooms. They then
started to leave the motel parking lot so as to return to
their patrol on Route 72 when a Thurston truck came
over a knoll toward them on a straight road about a
quarter of a mile away. When the truck was first picked
up on radar, it was going 67 miles per hour and it held
that speed continuously until it passed the safety car.
Sims gave pursuit and pulled the truck over to a safe
spot about 4 miles south of the motel. The safety super-
visor then performed his routine check and inspected the
truck. Following the inspection, Sims returned to Route
72 and patrolled until about 2:30 or 3 a.m. The next
morning Sims went to the Tupelo terminal, reported the
incident to Terminal Manager Crump, and told him "to
take the proper action." Sims testified that he did not see
Steele at the terminal as it was about 9 a.m.
3. Conclusion
Based on the entire record I find that the General
Counsel has failed to meet the burden of establishing by
a preponderance of the evidence that the discharge of
Steele was unlawfully motivated as the facts in Steele's
discharge are vastly different from the facts in Johnson's
discharge.
Steele's discharge took place almost 10 months after
Holscher's outburst on the day of the election, so as to
'2 Route 72 is an east-west highway that goes to Memphis. Corinth is
located at the intersection of Route 45. a north-south highway, and
Route 72. It is 80 miles from Memphis. "Rand McNally Road Atlas"
(1980R ed.)
1272
THURSTON MOTOR LINES, INC.
present a timing element very different from the timing
present in Johnson's case when the discharge took place
10 days after the threat. Sims was not in the area for an
undisclosed reason, but was in the area of Corinth on a
clearly enunciated business basis; that is, he was going to
do routine patrol of Respondent's trucks on Route 72, a
busy highway leading to Memphis, 50 miles north of the
Tupelo terminal.
Also, there is no question but that Steele then knew of
the 65-mile-per-hour policy in the Tupelo area and knew
that exceeding 65 was a dischargeable offense. He knew
this because he knew that the reason given for Johnson's
discharge in November was that he had exceeded 65
miles per hour. He also knew this because, as testified to
by Westmoreland, it had been announced by Operations
Manager King, or Tyner, the assistant to the vice presi-
dent of operations, at a meeting of the drivers held after
Johnson's discharge.
Since I have found Steele not to be a credible witness,
I also do not credit his testimony that he was only going
50 miles per hour when he was observed by the safety
supervisor. Steele admitted that he was coming down a
hill about a half mile long before he passed the Oasis.
Sims put the distance at or about a quarter of a mile. In
either situation, Sims had ample time to keep the radar
beam on the truck so as to measure its speed and the
radar gun fixed the truck's speed at 67 miles per hour. It
is also to be observed that in Johnson's discharge, for
some unstated reason, Sims did not clock him by radar,
but merely by the patrol car's speedometer.
While it is true that Steele worked the day after he
was observed by Sims, this was unlike Johnson's work-
ing the day after he was observed. On the day Johnson
was observed Sims came into the terminal on the same
evening, and reported his observation to the manager, so
that the manager could have discharged him that eve-
ning. In Steele's case, Sims did not come to the terminal
on the same evening of the observation, but went out
and performed the duties for which he was in the area in
the first place, patrolling highway 72. He did this until
approximately 3 a.m. and then, understandably, got some
sleep at the motel before going into the terminal at or
about 9 a.m. to report.
One other distinguishing factor is that there is no evi-
dence that Owner Thurston, or any executive of Re-
spondent, communicated in any way with the terminal
manager to tell him to discharge Steele as was done in
Johnson's case.
Accordingly, I find and conclude that Respondent has
met its burden of proving that union activity was not a
motivating reason in Steele's discharge, but that he was
discharged for violating Respondent's policy in the
Tupelo area of exceeding 65 miles per hour, and I shall
recommend the dismissal of this allegation.2 3
23 While the complaint in Case 26-CA-7937 alleges that the discharge
of Steele was also caused because he gave testimony to the oard in the
form of an affidavit. this was not pursued by the General Counsel at the
hearing or in his brief, and I have not considered it.
E. Unilateral Changes
1. The hiring of part-time employees
Westmoreland and Davis testified that in late Novem-
ber or early December King called a meeting of the em-
ployees and told them that business was slow. He then
told them that Respondent could not pay drivers to
break and load out freight at a driver's rate of pay. He
then explained that Respondent could hire part-time em-
ployees to do this work at cheaper rates and that the
drivers' hours would be cut by an hour a day.24
Baker testified that he started to work on a Monday,
breaking and loading freight. He worked Tuesday and
Wednesday when, at the end of his day, King called him
into his office and told him that he was going to have to
lay him off for a lack of work. When Baker asked what
the real reason was, King replied that he could not tell
him, that his orders "came from Charlotte," and that the
official reason for the layoff was because there was a
lack of work.
President Holscher admitted that two part-time em-
ployees had been hired and that he "might have known"
that they were going to be hired prior to their employ-
ment, but he was not sure. King had told Holscher that
he "needed people," and as operations manager at
Tupelo he hired them. Holscher admitted on the witness
stand that he had made a mistake in that the Union was
not notified or consulted before the two part-time em-
ployees were hired. Early in the week in which Baker
started to work, Holscher was called by union official
Dan Newton, who complained about the hiring of the
part-time employees. Holscher agreed with Newton that
he should have contacted the Union prior to hiring the
part-time employees and thereafter the two part-time em-
ployees were laid off.25
It is clear from Respondent's own admission that Re-
spondent made unilateral changes in working conditions
by installing the new job classification of part-time ware-
housemen, by changing the hours of work, and by reduc-
ing the employees' regular workweek to 35 hours per
week without any notice to the employees' bargaining
representative. Hence, I find that these changes were
made unilaterally by Respondent and the Union in no
way waived its right to negotiate thereon. Accordingly,
I find that Respondent thereby violated Section 8(a)(5)
and (1) of the Act. George Webel d/b/a Webel Feed Mills
& Pike Transit Company, 217 NLRB 815 (1975).
2. The change in Christmas holiday pay
Westmoreland, who was hired in August 1977, testi-
fied that at Christmastime of 1977 the employees were
paid for two Christmas holidays. In the following year,
King called the employees together for a meeting, telling
them he had been to Charlotte. The operations manager
:' G C Exhs. 15 and 16 are Thurston "Payroll Addition" forms which
show that Floyd E. Cunningham was hired on November 27 as a part-
time warehouseman. and Thomas Eddie Baker as hired on December
18 in the same classification.
2 G.C Exhs and 10 are "Company Terminationl Notices" for Cun-
ningham and Baker, which state that on December 20 these two employ-
ees were laid off "due to lack of work "
1273
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then proceeded to tell them "that Mr. Thurston had an-
nounced that they would cut us one paid holiday be-
cause [of] lack of business and they just couldn't afford
it, and we'd only get paid for one holiday during Christ-
mas instead of two." Davis, who was paid for two
Christmas holidays in 1977, testified that when King was
asked why the paid holidays for Christmas were being
cut from 2 to I he replied that it was a systemwide
policy.
It has long been held that Christmas bonuses which
are not gratuities, and which have been paid with regu-
larity over extended periods of time, constitute a manda-
tory subject of bargaining. Gravenslund Operating Com-
pany d/b/a Washington Hardware and Furniture Co., 168
NLRB 513 (1967). The record as to Thurston shows that
the double Christmas holiday pay was only paid in I
year-1977. In Nello Pistoresi and Sons, Inc. (S & D
Trucking Co., Inc.), 203 NLRB 905 (1973), the Board
held that Christmas bonuses received for 2 consecutive
years were part of the wage structure and a term and
condition of employment. While I agree that 2 years is
an extended period of time, I am unable to find that
under existing Board law I year constitutes such a period
of time so that the double payment in 1977 became a
part of the Thurston wage structure in Tupelo. I do
therefore find that Respondent's discontinuance of
paying for two paid Christmas holidays and only paying
for one such holiday in 1978, without notice to the
Union, did not amount to a violation of Section 8(a)(5)
and (I) of the Act. Accordingly, I shall recommend that
this allegation of the complaint be dismissed.
CONCLUSIONS OF LAW
1. Thurston Motor Lines, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Highway and Local Motor Freight Employees,
Local 667, affiliated with the 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. All local pickup and delivery drivers, road drivers,
checkers, and dockmen employed by Respondent at its
Tupelo, Mississippi, terminal, excluding all office clerical
employees and supervisors as defined in the Act, consti-
tutes an appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. On October 20, 1978, a majority of the employees of
Respondent in the unit described above, by secret-ballot
election conducted under the supervision of the Acting
Regional Director for Region 26 of the Board, in Case
26-RC-5843, designated and selected the Union as their
representative for the purposes of collective bargaining
with Respondent; and on October 30, 1978, the Union
was certified as the exclusive collective-bargaining repre-
sentative of the employees in said unit.
5. At all times since October 20, 1978, and continuing
to date, the Union has been the representative for pur-
poses of collective bargaining of employees in the unit
described above, and, by virtue of Section 9(a) of the
Act, has been, and is now, the exclusive representative of
all the employees in said unit for the purposes of collec-
tive bargaining with respect to rates of pay, wages, hours
of employment, and other terms and conditions of em-
ployment.
6. Since October 30, 1978, and continuing to date, the
Union has requested, and is requesting, Respondent to
bargain collectively with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment as the exclusive collective-bargaining repre-
sentative of all of the employees of Respondent in the
unit described above.
7. By coercively interrogating employees about their
union activities, by soliciting grievances, and by threaten-
ing its employees with unspecified reprisals, Respondent
interfered with, restrained, and coerced employees in the
exercise of their rights guaranteed in Section 7 of the
Act in violation of Section 8(a)(1) of the Act.
8. By terminating Donnie Long on September 5, 1978,
and Larry W. Johnson on November 8, 1978, because of
their support for the Union, Respondent has violated
Section 8(a)(3) and (1) of the Act.
9. By unilaterally instituting changes in the use of part-
time warehousemen and by reducing the work hours of
full-time employees in the appropriate unit as set forth
above, without notification to or bargaining with the
Union, Respondent has engaged in conduct violative of
Section 8(a)(5) and (1) of the Act.
10. Respondent has not engaged in any unfair labor
practices not specifically found herein.
THE REMEDY
Having found that Respondent has committed acts in
violation of Section 8(a)(1), (3), and (5) of the Act, I
shall recommend that:
1. It cease and desist from its unfair labor practices.
2. Offer Donnie Long and Larry W. Johnson full rein-
statement to their former positions or, if their positions
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges previously enjoyed, and make them whole for
any loss of earnings and other benefits suffered because
of Respondent's discrimination against them, from the
date of discharge to the date of a proper offer of rein-
statement. Their loss of earnings shall be computed as
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), plus interest as set forth in Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962), and Florida Steel Corpora-
tion, 231 NLRB 651 (1977).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 2 6
The Respondent, Thurston Motor Lines, Inc., its offi-
cers, agents, successors, and assigns, shall:
2 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order. and all objections thereto
shall be deemed waived for all purposes.
1274
THURSTON MOTOR LINES, INC.
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
any employee for supporting Highway and Local Motor
Freight Employees, Local 667, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other union.
(b) Threatening its employees that the terminal would
be closed down if the Union was voted in.
(c) Threatening its employees with unspecified repri-
sals because they selected the Union as their collective-
bargaining representative.
(d) Coercively interrogating employees concerning
their union activities.
(e) Soliciting grievances and impliedly promising to
remedy such grievances in order to induce employees
not to support the Union; provided, however, that noth-
ing herein requires Respondent to vary or abandon any
economic benefits or any terms or conditions of employ-
ment which it has heretofore established.
(f) Unilaterally, and without notification and/or bar-
gaining with the Union, changing hours and working
conditions of its employees.
(g) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
guaranteed under Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer Donnie Long and Larry W. Johnson immedi-
ate and full reinstatement to their former jobs or, if the
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and make them whole for their lost earnings
in the manner set forth in the section of this Decision en-
titled "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, time-
cards, personnel records and reports, and all records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Make whole any employee who has lost wages or
other benefits because of the application of the unilateral-
ly instituted change of working hours on December 18,
19, and 20.
(d) Notify and bargain with the Union as exclusive
representative of the employees in the above appropriate
unit with respect to changes in hours of work and part-
time employees and otherwise bargain in good faith with
the Union as to wages, hours, and other terms and condi-
tions of employment.
(e) Post at its terminal in Tupelo, Mississippi, copies of
the attached notice marked "Appendix."" Copies of the
notice, on forms provided by the Regional Director for
Region 26, after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(f) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violation of the Act not specifically
found herein.
2' In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National L.abor Relations Board."
1275