Braswell Motor Freight Lines, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1965

154 N.L.R.B. 101 (N.L.R.B. 1965)

BRASWELL MOTOR FREIGHT LINES, INC., ETC. 101
Braswell Motor Freight Lines , Inc.; Braswell Freight Lines, Inc.;
and J. V. Braswell and Teamsters Local Unions 745, 47, 886,
523, 270, 5, 568 , 667, and 891, affiliated with International Broth-
erhood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America. Case No. 16-CA-1648. July 30, 1965
SUPPLEMENTAL DECISION AND ORDER
On March 31, 1964, Trial Examiner George J. Bott issued his Sup-
plemental Decision and Recommended Order in the above-entitled
proceeding, finding that Respondents had not engaged in the unfair
labor practices alleged in the General Counsel's amended complaint
and recommending that such complaint be dismissed in its entirety, as
set forth in the attached Supplemental Decision. Thereafter, the
Respondents, the General Counsel, and the Charging Parties filed
exceptions to the Supplemental Decision and briefs in support
thereof.'
The Board has reviewed the rulings made by the Trial Examiner
at the second hearing and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. The Board has reconsidered
its original Decision, the Trial Examiner's Supplemental Decision, the
exceptions and briefs, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner to the extent consistent with our Supplemental Decision
herein.
The amended complaint differs from the original in that the former
contains new allegations of general bad-faith bargaining whereas the
latter was limited to several specific instances of such conduct. In sup-
port of the new allegations of the complaint, the General Counsel
adduced considerable testimony through N. P. Wilson, a former ter-
minal manager for Braswell Freight Lines, and one of the three nego-
tiators representing Respondents during negotiations with the Union.
For reasons fully set forth in his Supplemental Decision, the Trial
Examiner refused to accept much of Wilson's testimony. The Trial
Examiner was of the opinion that without this testimony the General
Counsel had not established the allegations of the amended complaint
by a fair preponderance of the evidence. We do not agree. Accepting
the Trial Examiner's credibility resolutions as to Wilson, there is,
nevertheless, substantial evidence in this record to support the con-
i The Charging Parties' request for oral argument is denied because in our opinion the
record, exceptions , and briefs adequately set forth the issues and positions of the parties.
154 NLRB No. 20.
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elusion that Respondents were resolved on and after October 20, 1961,
not to reach agreement or to sign a contract with the Union and entered
into and engaged in collective-bargaining negotiations with this fixed
purpose and intention.
In the first place, while the Trial Examiner viewed Wilson's testi-
mony with "suspicion and skepticism," it is clear from the record, and
the Trial Examiner found, that Wilson's recital of his involvement
with Braswell and union negotiations was not merely a product of his
imagination. Attempts by agents of Respondents to win Wilson over
to their side, offers of a job not quite up to Wilson's demand that he
be given a 5-year contract and $700 a month, indicate, as the Trial
Examiner found, that Respondents "knew that Wilson was a threat.''
His testimony could be, and was, most damaging to Respondents.
Thus, the Trial Examiner credited Wilson's testimony that Braswell
told him in 1957 that he had "inherited" the labor contract from D. C.
Hall and that "there would be no more," when it expired, and that
Braswell also told Wilson, in the fall of 1958, that he did not know
when he purchased D. C. Hall that he had to assume the contract, but
that he would never sign another contract with the Teamsters. This
testimony was fully corroborated by two disinterested witnesses, Ever-
ett Cloer and Harold Hollenshead, general manager and assistant gen-
eral manager, respectively, for D. C. Hall. Cloer testified that after
the purchase of D. C. Hall in July or August 1957, Cloer mentioned to
Braswell that the contract between the Association and the Union
was due for reopening, to which Braswell replied that he intended to
operate the newly acquired company as he did his Texas division of the
Braswell system, namely, nonunion, and that he had his equipment
paid for and $2 million in the bank to "fight the cause." Confirming
Wilson's and Cloer's testimony, Hollenshead, who was present during
the conversation between Braswell and Cloer, testified that Braswell
stated he was operating his line in Texas without a union contract and
it was not his intention to operate the business he had just acquired
under a Teamster contract. Hollenshead recollected, as did Cloer, that
Braswell mentioned he had $2 million in the bank to fight the Union
and he did not think the Union could beat him; his equipment was
paid for and, in the event of a strike, he could sell "one piece of it every
month and live." According to Hollenshead, Braswell stated that he
did not intend that the Operators Association negotiate on his behalf
in the future, and that he would so advise the secretary of the Associa-
tion. Hollenshead further testified with respect to a conversation in
1960, several years after the above conversations, in which Braswell
stated that he ". . . didn't intend to sign a contract with the Teamsters
and never intended to operate under another Teamsters contract. If
they struck him, he intended to keep operating his freight lines, and
BRASWELL MOTOR FREIGHT LINES, INC., ETC. 103
that was what he intended to do." On the same occasion, Braswell
said that he expected the Union to strike and he wanted them to, but
the only way to beat the Union was to keep operating.2 The then cur-
rent contract between the Association and the Union expired on Janu-
ary 31, 1961. Lending substance to the testimony of the above wit-
nesses, Braswell Freight Lines withdrew from the Association in the
fall of 1960, attempted to challenge the Union's majority by filing a
series of some 17 representation petitions before the Board, which were
subsequently withdrawn,3 and commenced separate bargaining with
the Union on February 1, 1961, in a course of conduct that was to pro-
duce discord, strife, extended unfair labor practice proceedings, includ-
ing charges and counter-charges of doctored statements and double-
dealing witnesses, and a long and bitter strike.
While testimony of the above witnesses is outside the 10(b) period
and is used here only for background purposes, such testimony clearly
establishes that, at least from 1957 to the fall of 1960, Braswell main-
tained a firm and unswerving resolve not to sign a new contract with
the Teamsters and, in this connection, expected and wanted the Union
to strike. We cannot agree with the Trial Examiner that such evidence
is too "remote" to warrant serious consideration for background pur-
poses particularly where, as here, Respondents' subsequent statements
and actions appear to be a fulfillment of Braswell's earlier threats.
With respect to the evidence adduced by the General Counsel wholly
within the 10(b) period, there is, again, substantial testimony estab-
lishing Braswell's continuing unlawful intention not to reach agree-
ment with the Union or to sign a contract. According to the credited
testimony of H. C. Hawkins and John Henniger, dock foremen at
Braswell Freight Lines' New Orleans terminal, on the morning of the
strike, April 23, 1962, Braswell told them and Terminal Manager
Henry Zahn to hire replacements for the strikers and to guarantee
them permanent employment because Braswell was not going to sign
with the Union. The Trial Examiner also credited Henniger's and
Hawkins' testimony that on numerous occasions in 1962, Terminal
Manager Zahn stated that Braswell did not intend to sign a contract.'
a Also credited is the testimony of Robert Daring , former terminal manager for Bras-
well Freight Lines at Forth Worth, Texas , and N. P. Wilson that on different occasions in
1957 Braswell stated that he had inherited the labor contract from D . C Hall , but there
would be no more when it expired and that he would never sign another contract with
the Teamsters.
3 According to Braswell 's testimony , the petitions filed December 19, 1960, were with-
drawn on January 3, 1961, upon the advice of Lane Johnson , Respondents ' traffic man-
ager, who told Braswell that based upon his discussions with terminal managers, John-
son was of the opinion that the election would be lost by the Respondents.
4 The Trial Examiner found that Zahn's statements were understood by Henniger and
Hawkins to mean Braswell would not sign the contract the other carriers were then oper-
ating under . We fail to see how the witnesses ' interpretation of such a remark can have
any impact on the statement itself. Accordingly , we accord no weight to the witnesses'
interpretation of this remark.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While we accept the Trial Examiner's findings that Braswell did not
tell Hawkins that Braswell had known for 2 years that he was not
going to sign with the Union, we do not adopt the Trial Examiner's
characterization of Hawkins' testimony in this respect as an "unlikely
story," in view of the substantial credited testimony set forth above
for the period from 1957 to 1960. Corroborating the testimony of these
witnesses is the credited testimony of Odell Hatley, a striker replace-
ment, that during the period of his employment at the Memphis ter-
minal, May 1 to October 1962, he was told by Terminal Managers W. C.
Smith and Van McQueen that replacements need not worry about los-
ing their jobs because Braswell was not going to sign a contract.
Finally, there is the testimony of employees James Bray and Buddy
Stevenson, who had been employed by Shayler Truck Lines when that
company was purchased by Respondents in February 1963. These
employees were interviewed by James A. Bunch, superintendent of
line drivers for Braswell Freight Lines, for employment with that
firm. According to Bray, he was told by Bunch that the new operation
was nonunion and that it was going to be run that way if he and Bras-
well had to drive the trucks themselves. This testimony, although
denied by Bunch, was credited by the Trial Examiner. Stevenson
testified that he was told by Bunch that the job was not union and not
going to be, and that if he had any idea that the line would be union
in the future to forget it. The latter statement was not credited by
the Trial Examiner apparently on the ground that it did not "appear
in Bray's testimony and he was present at the interview." But the
record does not show that Bray controverted Stevenson's testimony
in this respect. Indeed, it would appear more reasonable to infer from
Bray's testimony, and we do, that both he and Stevenson had been told
by Bunch that Braswell Freight Lines was going to remain nonunion
in the future. The Trial Examiner's contrary finding would accord
reliability to the testimony of Bunch whom the Trial Examiner else-
where found to be an "unreliable witness" whose testimony was a
"fabrication." We therefore conclude that Bray's testimony and that
of Stevenson are mutually corroborative and that, contrary to the Trial
Examiner, such testimony significantly supports the General Coun-
sel's contention that Braswell never intended to sign a contract with
the Union in the instant case.
It is in the context of the above testimony as to Braswell's deter-
mination not to sign a contract with the Union that the negotiations
between Respondents and the Union beginning on February 1, 1961,
must be considered. The Union and the Southeast Operators Associa-
tion had agreed upon a contract in late January 1961, effective as of
February 1, 1961. This contract provided substantially improved
economic benefits for the employees in that unit. As indicated above,
BRASWELL MOTOR FREIGHT LINES , INC., ETC. 105
Respondents had withdrawn from the Association in the fall of 1960
and filed several petitions with the Board seeking a redetermination
of the Union 's bargaining status . These petitions , however, were
withdrawn by Respondents ' attorney in early January 1961, because
Respondents finally concluded that the "election would be lost." Hav-
ing waited until the termination date of the existing contract , Respond-
ents entered into bargaining negotiations for a new contract on Febru-
ary 1, 1961 , at a time when the employees were not covered by any
contract.
At the outset , Respondents took the position that they could not
continue the benefits provided in the preexisting contract . The union
responded by insisting on the benefits obtained in its newly negotiated
Association contract . On February 10, Respondents offered the first
formal proposal to the Union . As the Trial Examiner noted, this
proposal contained clauses "to which , probably, no self respecting
union would agree." Rather than a wage increase , the proposal elimi-
nated overtime pay, increased the noncompensated layover time of
drivers, eliminated the checkoff , made payments for health and welfare
directly payable to the employees, established a new grievance proce-
dure calling for tripartite arbitration , and finally provided that the
contract continue for a period of 6 years . On December 5, 1961, 10
months later , Respondents submitted a second proposal , retreating
from their original position that health and welfare payments be made
directly to employees and agreeing , in substance , to accept the Union's
offer for binding arbitration of grievances . Respondents' attorney,
Allen P. Schoolfield , testified that Braswell Freight Lines considered
the wage scale the most important issue in bargaining. He said there
was no serious intention of making welfare payments directly to
employees , but that the proposal was a "... kind of a little shock thing
" In February 1962 respondents submitted their third proposal.
This proposal offered a 10 -cent-an-hour wage increase and a one-
quarter-cent -per-mile increase in the mileage rate for drivers. No
mention was made as to the duration of the contract and Respondents
appeared to have abandoned their original requirement that the con-
tract continue for 6 years . On April 23 , 1962, Respondent Braswell
Freight Lines' employees , still without a contract after more than a
year of negotiations , struck. On August 7, 1962, Respondents sub-
mitted what they termed their final proposal. Agreeing to certain con-
tract proposals submitted by the Union , Respondents again demanded
the elimination of premium pay, checkoff , and the acceptance of a 24-
hour layover period. With negotiations having extended over 18
months and a strike in progress for more than 4 months, Respondents
now proposed in their "final offer " the same wage scale in effect under
the prior contract negotiated by the Association in 1958, tinder eco-
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nomic conditions prevailing at that time, and further proposed that
the scale for new employees be cut to $2 per hour.. These proposals
were advanced by the Respondents in the face of substantial economic
benefits acquired by Association employees 11/2 years earlier for work
in the same geographic area and of the same type as that performed by
the employees of Braswell Freight Lines.
The duty to bargain collectively under Section 8(a) (5) is defined
under Section S(d) as the mutual obligation of the employer and the
representative of the employees "to . . . confer in good faith with
respect to wages, hours, and other terms and conditions of employ-
ment." While this obligation does not compel either party to agree
to a proposal or to make a concession, good-faith bargaining does,
indeed, require that the parties enter into negotiations with an open
mind and a sincere desire to reach agreement. Contrary to the Trial
Examiner, we cannot regard Respondents' entire course of conduct
from October 20, 1961, taking into consideration the background evi-
dence extending to 1957, as nothing more than "hard bargaining."
The record is replete lvitli statements by Braswell or his agents to the
effect that he had not the slightest intention of ever signing a contract
with the Union. Nothing that occurred during the period of negotia-
tions, from Respondent's first unrealistic proposal to its last harsh offer
of a wage scale substantially lower than that enjoyed by the Associa-
tion employees, only recently included in the same unit with the
employees of Braswell Freight Lines, suggests that Respondents had
had a change of heart.
Upon the entire record in this case, we conclude, and find, that
Respondents during the relevant period herein did not fulfill their
obligation to confer in good faith with the representative of their
employees with respect to wages, hours, and conditions of employment
and thereby violated Section 8(a) (5) of the Act.6
In view of this finding, it is necessary to consider whether the strike
of April 23,1962, was, as alleged by the complaint, caused or prolonged
by Respondents' unfair labor practices. The reasons assigned by the
Union as the basis for its strike action are set forth in the Union's
April 17, 1962, letter to J. V. Braswell. While some of the specific
grievances outlined in this letter have not been found by us to consti-
tute unfair labor practices, it is apparent from this letter that the
Union was protesting and eventually struck over Respondents' failure
5 Respondents have excepted to the Trial Examiner's failure to rule specifically on
whether the evidence adduced on remand may properly be considered newly discovered
evidence. It is clear that the Trial Examiner treated all evidence bearing upon Respond-
ents' general good faith as being properly before him based upon the previous unavail-
ability of such evidence in the earlier proceeding We agree with the Trial Examiner and
accordingly find no merit in Respondents ' exception
9 The General Tire and Rubber Company, 135 NLRB 269; Sunbeam Plastics Corporation,
144 NLRB 1010.
BRASWELL MOTOR FREIGHT LINES, INC., ETC. 107
to engage in good-faith bargaining during the course of the negotia-
tions. Accordingly, we conclude that the strike of April 23, 1962, was
in part, at least, caused and prolonged by Respondents' unfair labor
practices, and that the employees who went on strike on April 23,
1962, and who have remained on strike since that date are entitled to
reinstatement.
ADDITIONAL CONCLUSIONS OF LAW
1. At all times material, the Union has been the exclusive bargaining
representative for employees in the following separate units herein
found appropriate for the purposes of collective bargaining within
the meaning of Section 9 (a) of the Act.
(a) All over-the-road drivers, chauffeurs, and driver-helpers of
Respondent Braswell Freight Lines, excluding all other employees, all
local dockworkers and city pickup and delivery employees, office cleri-
cals, guards, technical employees, and supervisors as defined in the Act.
(b) All mechanics and service employees of Respondent Braswell
Freight Lines at its terminals in New Orleans and Shreveport, Louisi-
ana; Dallas, Texas; and Jackson, Mississippi, including mechanics
helpers, parts and time men, wash-grease-and-service employees, weld-
ers, bodymen, painters, letterers, stripers, tire vulcanizers, and elec-
tricians; but excluding all over-the-road and local drivers, dock
employees, office clericals, guards, technical employees, and supervisors
as defined in the Act.
(c) All office clerks of Respondent Braswell Freight Lines at its
terminals in Monroe, Shreveport, and New Orleans, Louisiana; and
Dallas, Texas, including rate clerks, cashiers, assistant cashiers, inner
line and/or division clerks, O.S. & D. clerks, stenographers, billing
clerks, manifest clerks, filing clerks, abstract clerks, PBX operators,
posting and mail clerks, but excluding all other employees, guards,
technical employees, and supervisors as defined in the Act.
(d) All dock employees of Respondent Braswell Freight Lines at
its terminals in Dallas and Fort Worth, Texas; Oklahoma City and
Tulsa, Oklahoma; Shreveport, New Orleans; Monroe, Alexandria,
and Baton Rouge, Louisiana; Jackson, Mississippi; and Memphis,
Tennessee, including all local drivers, chauffeurs, driver-helpers,
checkers, fork-lift operators, dockmen, and helpers; but excluding all
other employees, over-the-road drivers, mechanics, service employees,
office clericals, guards, technical employees, and supervisors as defined
by the Act.
2. By resolving not to reach a collective-bargaining agreement with
the Union, not to sign one, and engaging in bad-faith collective-
bargaining negotiations in keeping with this resolve, Respondents have
on October 20, 1961, and thereafter engaged in and are engaging in un-
fair labor practices within the meaning of Section 8(a) (5) of the Act.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The strike by the employees of Braswell Freight Lines commenc-
ing on April 23, 1962, was caused and prolonged by Respondents'
unfair labor practices.
4. Respondents did not engage in any of the other unfair labor prac-
tices alleged in the amended complaint.
THE REMEDY
Having found that the Respondents have engaged in the unfair
labor practices set forth above, we shall order that they cease and desist
therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Respondents refused to bargain with the
Union in violation of the Act, we shall order that, upon request,
Respondents bargain with the Union as the exclusive bargaining agent
of their employees in the units herein found to be appropriate.
Having found that the strike of April 23, 1962, was caused and pro-
longed by Respondents' unfair labor practices, and that said strike
is still in progress, we shall order Respondents to reinstate upon appli-
cation any of their employees who went on strike on April 23, 1962,
and have remained on strike since that, date, such employees being
entitled to reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and priv-
ileges, and dismissing, if necessary, any employees hired on or after
April 23, 1962. In the event Respondents fail to offer reinstatement to
such employees within 5 days after their respective applications, we
shall order that Respondents make whole these strikers by payment to
each of them of a sum of money equal to that which he normally would
have earned as wages during the period from 5 days after the date
on which he applied for reinstatement to the date of Respondents'
offer of reinstatement, such suns to be computed in the manner set forth
in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing cC
Heating Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondents, Braswell Motor Freight Lines, Inc.; Braswell Freight
Lines, Inc.; and J. V. Braswell, their officers, agents, successors, and
assigns, shall:
1. Cease and desist from refusing to bargain collectively, upon
request, with Teamsters Local Unions 745, 47, 886, 523, 270, 5, 568, 667,
and 891, afliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as the exclusive
representatives of their employees in the following appropriate units:
BRASWELL MOTOR FREIGHT LINES, INC., ETC. 109
(a) All over-the-road drivers, chauffeurs, and driver-helpers of
Respondent Braswell Freight Lines, excluding all other employees,
all local dockworkers and city pickup and delivery employees, office
clericals, guards, technical employees, and supervisors as defined in
the Act.
(b) All mechanics and service employees of Respondent Braswell
Freight Lines, at its terminals in New Orleans and Shreveport, Louisi-
ana; Dallas, Texas; and Jackson, Mississippi, including mechanics
helpers, parts and time men, wash-grease-and-service employees, weld-
ers, bodymen, painters, letterers, stripers, tire vulcanizers, and electri-
cians; but excluding all over-the-road and local drivers, dock employ-
ees, office clericals, guards, technical employees, and supervisors as
defined in the Act.
(c) All office clerks of Respondent Braswell Freight Lines at its
terminals in Monroe, Shreveport, and New Orelans, Louisiana; and
Dallas, Texas, including rate clerks, cashiers, assistant cashiers, inner
line and/or division clerks, O.S. & D. clerks, stenographers, billing
clerks, manifest clerks, filing clerks, abstract clerks, PBX operators,
posting and mail clerks, but excluding all other employees, guards,
technical employees, and supervisors as defined in the Act.
(d) All dock employees of Respondent Braswell Freight Lines at
its terminals in Dallas and Fort Worth, Texas; Oklahoma City and
Tulsa, Oklahoma; Shreveport, New Orleans, Monroe, Alexandria, and
Baton Rouge, Louisiana; Jackson, Mississippi, and Memphis, Ten-
nessee, including all local drivers, chauffeurs, driver-helpers, checkers,
fork-lift operators, dockmen, and helpers; but excluding all other
employees, over-the-road drivers, mechanics, service employees, office
clericals, guards, technical employees, and supervisors as defined by
the Act.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act :
(a) Upon request, bargain collectively with Teamsters Local Unions
745, 47, 886, 523, 270, 5, 568, 667, and 891, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, as the exclusive bargaining representatives of all employ-
ees in the appropriate units described above and, if an agreement is
reached, embody such agreement in a signed contract.
(b) Upon application, reinstate to their former or substantially
equivalent positions, without prejudice to their seniority or other rights
and privileges, any employees who went on strike on April 23, 1962, and
who have remained on strike since that date, dismissing, if necessary,
any person hired on or after that date, and in the event of failure to do
so within 5 days after their respective applications, make them whole
in the manner set forth in the section entitled "The Remedy."
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify any of the above employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity records, timecards, personnel records and reports, and all other
records necessary to analyze the amount of any backpay which may
become due under the terms of this Order.
(e) Post at all the terminals of Respondent, Braswell Freight Lines,
Inc., copies of the attached notice marked "Appendix.-' Copies of
said notice, to be furnished by the Regional Director for Region 16,
shall, after being duly signed by Respondents' representatives, be
posted by Respondents immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondents to insure that said
notices are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 16, in writing, within
10 days from the date of this Order, what steps Respondents have
taken to comply herewith.
' In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order".
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the purposes of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively, upon request, with
Teamsters Local Unions 745, 47, 886, 523, 270, 5, 568, 667, and
891, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as the exclu-
sive bargaining representatives of our employees in the following
appropriate units :
(a) All over-the-road drivers, chauffeurs, and driver-helpers
of Respondent Braswell Freight Lines, excluding all other employ-
ees, all local dockworkers and city pickup and delivery employees,
office clericals, guards, technical employees, and supervisors as
defined in the Act.
(b) All mechanics and service employees of Respondent Bras-
well Freight Lines at its terminals in New Orleans and Shreve-
BRASWELL MOTOR FREIGHT LINES, INC., ETC. 111
port, Louisiana; Dallas, Texas; and Jackson, Mississippi,
including mechanics helpers, parts and time men, wash-grease-
and-service employees , welders, bodymen , painters , letters,
stripers , tire vulcanizers , and electricians ; but excluding all over-
the-road and local drivers, dock employees , office clericals , guards,
technical employees , and supervisors as defined in the Act.
(c) All office clerks of Respondent Braswell Freight Lines at
its terminals in Monroe, Shreveport, and New Orleans, Louisi-
ana; and Dallas, Texas, including rate clerks, cashiers, assistant
cashiers, inner line and/or division clerks, O.S. & D. clerks, ste-
nographers, billing clerks, manifest clerks, filing clerks, abstract
clerks, PBX operators, posting and nail clerks, but excluding all
other employees, guards, technical employees, and supervisors as
defined in the Act.
(d) All dock employees of Respondent Braswell Freight Lines
at its terminals in Dallas and Fort Worth, Texas; Oklahoma City
and Tulsa, Oklahoma; Shreveport, New Orleans, Monroe, Alex-
andria, and Baton Rouge, Louisiana; Jackson, Mississippi; and
Memphis, Tennessee , including all local drivers , chauffeurs,
driver-helpers, checkers , forklift operators, dockmen, and helpers;
but excluding all other employees, over-the-road drivers, me-
chanics, service employees , office clericals , guards, techn ical em-
ployees, and supervisors as defined by the Act.
WE WILL, upon application, reinstate striking employees to their
former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges.
BRASWELL MOTOR FREIGHT LINES, INC.,
Ennployer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
BRASwELL FRInGIIT LINES, INC.,
Emmaployer.
Dated---------------- By-------------------------------------
(Repiesent , itive ) ( Title)
J. V. BRASwELL,
Eiinploycr.
Dated---------------- By-------------------------------------
(Representatiie ) ( Title)
NOTE.-We will notify any employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement
upon application in accordance with the Selective Serv^ce Act and the
Universal Military Training and Service Act of 1945, as amended,
after discharge from the Armed Forces.
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort
Worth, Texas, Telephone No. Edison 5-4211, Extension 2131, if they
have any questions concerning this notice or compliance with its
provisions.
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On January 21, 1963, Trial Examiner George J. Bott issued an Intermediate Report
recommending dismissal of the General Counsel's complaint which had alleged a
refusal to bargain in violation of Section 8(a)(1) and (5) of the Act. Upon review
the Board dismissed the complaint on April 9, 1963, 141 NLRB 1154.
Thereafter, on April 12, 1963, the Charging Party filed a petition to review
the Order of the Board with the United States Court of Appeals for the District of
Columbia and, on May 3, 1963, the Board filed its answer to the petition to review and
set aside its Order. On May 23, 1963, the Charging Party filed a motion for recon-
sideration with the Board, and on May 31, 1963, filed a supplemental motion for
reconsideration alleging newly discovered evidence. On June 14, 1963, the General
Counsel also filed a motion to reopen the record and remand and to grant permission
to amend the complaint with the Board on the ground of newly discovered evidence
On August 6, 1963, the Boaid, by telegraphic order, granted the General Counsel's
motion to reopen the record, to remand the case for further hearing, and to amend the
complaint in connection therewith The Board also ordered that its prior Decision
and Order be vacated for the purpose of such remand. The Board having thus vacated
its prior order, pursuant to the provisions of Section 10(d) of the Act, moved the
court of appeals on August 1, 1963, to dismiss the petition for review since there no
longer was a final order for which review might be sought . The court granted the
Board's motion.
Pursuant to the order of remand , the General Counsel issued an amended complaint
and notice of hearing on August 12, 1963, alleging that Respondents had engaged in
unfair labor practices in violation of Section 8(a) (1) and ( 5) of the Act . This com-
plaint differed basically from the original complaint which the Board had dismissed
in that it added an allegation that Respondents had ". . resolved not to reach a
collective bargaining agreement with the Union , not to sign one and to engage in bad
faith bargaining negotiations , in keeping with this resolution " Respondents filed an
answer denying the commission of unfair labor practices and a hearing was held
before Trial Examiner George J. Bott in Fort Worth, Texas, on October 1 through 4,
14 through 18, and 21 and 22, 1963. All parties were represented at the hearing and
all filed briefs after the hearing which I have considered.'
Upon the entire record in the case, and from my observation of the witnesses, I
make the following additional:
FINDINGS OF FACT2
A. The newly discovered evidence
Unlike the original complaint which asserted the refusal of the parent company,
Braswell Motor freight, as well as the owner , J. V. Braswell , to show their books to
the Union after a plea of poverty by the subsidiary , Braswell Freight Lines , during
i Subsequent to the hearing on November 12, 1963 , the Union filed with me a motion to
reopen the record which it supplemented on December 11, 1963. This motion is hereby
denied for the reasons given below In the body of this Decision
2 Most of what was said and found in my earlier report need not be repeated because
much of it is uncontradicted as far a, basic findings are concerned , although there are
disagreement with some of my earlier interpretations of the facts and conclusions of
law. I will go, therefore , immediately to the alleged newly discovered evidence and con-
sider it on its own as well as how it might affect any of my earlier findings Where
changes, modifications , or additions to my original findings or conclusions are indicated,
Such will be clearly set forth herein. The first Intermediate Report ( now called Trial
Examiner's Decision ) is found In 141 NLRB 1154 , and will be cited as I.R.
BRASWELL MOTOR FREIGHT LINES, INC., ETC. 113
bargaining, as bad-faith bargaining, and this and certain other employer actions, such
as the abolition of overtime pay, the alleged unilateral reduction of the starting rate,
and the installation of an incentive system, as causing or prolonging a strike which
took place on April 23, 1962, the complaint in the reopened case alleged in substance
that, in addition to all of the matters specified in the first complaint as bargaining in
bad faith, Respondents never intended to reach an agreement with the Union and
engaged in bad-faith bargaining throughout all negotiations It was principally on the
basis of this proposed additional allegation and the evidence proffered in support of
it,3 it would seem to me, that the Board reopened the case, and N. P. Wilson was
General Counsel's chief witness to support his new theory.
It will be recalled that Braswell Freight's predecessor, D. C. Hall Company, was a
member of the Southwest Operators Association, a multiemployer bargaining agent
In 1958, the Association renewed an agreement with the Union on behalf of its
members, including Braswell Freight. This contract was to expire on January 31,
1961.
Sometime in the fall of 1960, Braswell Freight withdrew from the Association and
later filed representation petitions with the Board questioning the Union's majority.
After the petitions were withdrawn, Braswell Freight commenced bargaining with
the Union for a new agreement. The negotiations commenced on February 1, 1961,
and were still going on at the time of the original hearing in this case in September
1962. The Company had three negotiators on its team, namely, Allen Schoolfield,
its attorney, J. B. Skidmore, superintendent of drivers for Respondents, and N. P.
Wilson. Braswell Freight's Dallas terminal manager. N. P. Wilson is the Wilson who
testified for General Counsel.
Before he became terminal manager in Dallas, Wilson was terminal manager for
Braswell in Fort Worth. Wilson testified that sometime in August 1957, while he
was at the terminal of Braswell Motor Freight in Fort Worth, J. V. Braswell told
him that he (Braswell) had "inherited the present" labor contract from the D. C. Hall
Company and that when it expired "there would be no more." -5 As additional evi-
dence of Braswell's intentions during bargaining, Wilson recited a conversation with
Braswell in September 1958 in which Braswell told Wilson that he did not believe he
had to assume the D. C. Hall contract with the Teamsters when he purchased that
company but that there was a new contract coming up for negotiations and he would
never sign another contract with the Teamsters.6
General Counsel's motion to reopen the record referred to Braswell "fighting the
Union" and Wilson testified about certain events in 1958 and 1959. He said that he
succeeded a Mr Tomlin as terminal manager in Fort Worth in September 1958, and
that Braswell told him he replaced Tomlin because Tomlin would not fight the Union
According to Wilson, Braswell made similar remarks about other terminal man-
agers. He mentioned a Hildebrand in Shreveport, and Bill Ward in New Orleans.
This apparently happened in 1959, and Wilson said he "believed" that Braswell said
the two men would not "fight the Union" and that they were "weak." Wilson
replaced Dunn as terminal manager in Dallas in June 1960. He said that Braswell
told him that Dunn was "very weak" and that he was not making it "hard" on union
employees in order to get himself into the good graces of the Union.
Wilson "fought the Union" while he was terminal manager, he said, by issuing
warning letters to employees on every possible occasion and discharging employees
wherever he could. He added that he replaced casual help, which was primarily union
help, with nonunion employees. He testified that Braswell told him to issue the warn-
ing letters and that the Company had established a quota of reprimands that each
terminal manager must issue. According to Wilson, the quota was one a day, and
was promulgated by teletype from the home office.7
3 General Counsel's motion to reopen (General Counsel's Exhibit No 23f) outlined the
alleged newly discovered evidence and set out the proposed amendments. No affidavits
were attached
4I It., section III, C, 3
8 Wilson said he thought Robert Daring, Braswell Motor Freight (the parent company)
terminal manager, was present at some of these conversations but Daring did not cor-
roborate him. See Daring's testimony, infra.
9 The charge in this case was filed on April 20, 1962, and events prior to October 20,
1961, are cut off as far as violations are concerned under Section 10(b) of the Act This
evidence of Wilson's about Braswell's remarks, and other evidence like it, was offered as
background to throw light on Braswell's conduct during the appropriate periods.
7 Written warnings prior to discharge, except in cases of certain serious offenses, were
required under the existing labor agreements See article VII in General Counsel's
Exhibit No. 5b, for example.
206-446-66-vol 154-9
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under the contracts that existed between the parties prior to February 1, 1961,
grievances which could not be resolved at the local level were handled by a joint
board composed of equal numbers of carrier and Teamsters representatives.8 The
record is clear that J. V. Braswell did not like the joint board system of handling
grievances , and Wilson testified to certain statements or actions on Braswell's part
relating to the handling of grievances which are supposed to show that Braswell was
out to sabotage the giievance machinery Wilson testified that he was instructed by
Braswell and Lane Johnson , who supervised the handling of grievances for the
Respondents on a higher level, to ignore the joint board decision if the decision might
be upset in the Federal courts. Wilson cited examples of grievances where he said
these instructions were implemented In one case one of his drivers failed to pass
an eye examination , as required by the Interstate Commerce Commission , and was
disqualified for further duty. The joint board recommended that a checker's job be
posted by Braswell which the driver would bid for and get on a seniority basis.
Respondents refused to accept the recommendation to create a job. This was in
1959
The contract between Braswell Freight 10 and the Union was due to expire on
January 31 , 1961, and contained a 60-day-notice-of-termination clause. Wilson went
to Dallas as terminal manager in June 1960 and, according to him, Braswell , beginning
in September 1960, spoke "almost continuously " with him about the expiring con-
tract. Wilson testified that Braswell told him that he had withdrawn the power of
attorney given the Southwest Operators Association to bargain for Braswell Freight
and had hired Attorney Schoolfield to represent him. Braswell said that he was not
going to sign a contract with the Union and that a strike would occur. Braswell told
Wilson about his plans for a strike, Wilson said . Braswell had two plans in case of a
strike. The first was to close down completely for a year , and the second was to
operate on a very limited basis without even replacing strikers Braswell told him
the first plan would cost the Company $ 9,000 a month but that he could stand it for
a long time.11
Attorney Schoolfield was retained sometime in November 1960 and wrote to the
Union on November 21, 1960, giving 60 days' notice of termination of the contract.
Wilson described a meeting of all terminal managers in Attorney Schoolfield's
office in November 1960 Braswell announced that Schoolfield had been retained to
handle labor matters and that in the future all questions should be sent to him.
Braswell then turned the meeting over to Schoolfield 12 Schoolfield told the group
that the Company was going into labor negotiations but that there was a possibility
of a strike . He warned the managers that there were certain things that could not
and could be done within the law and said it was his job to advise them. Schoolfield
distributed a memorandum of instructions to the men which is in evidence .13 Wilson
said Schoolfield also told the managers to be very careful about what they said and
that they could not spread information around that Braswell "was not going to sign a
contract " Wilson said , however, that it was made clear to all that if they were asked
s Articles VII and VIII, General Counsel's Exhibit No 5a
e He gave no details about the other two
10 By virtue of its membership in the Southwest Operators Association There were
four contracts covering four units but they may be referred to in the singular for all
practical purposes.
11 Wilson also testified that Braswell told him, as part of his strike strategy, of a plan
to file individual line tariffs with the Interstate Commerce Commission establishing a rate
identical to the industry rate. These rates would remain dormant for the duration of the
strike ( about a year ) but, in the meantime , the other carriers would have raised their
rates because they would have settled with the Union with an increase in wages and
other costs After the strike Braswell would have a competitive advantage when it went
back into business . Wilson said the tariffs were filed in November 1960 and became
effective.
12 General Counsel's brief states that the terminal managers stayed at a motel in Dallas
and discussed operational matters before and after their meeting with Schoolfield In
these meetings , the brief continues, Braswell made it clear to the managers his intent
never to sign another contract with the Teamsters. There is no evidence in the record to
support this assertion Wilson testified that he was otherwise occupied and did not
know what Braswell "had to say" at those gatherings.
13 Respondents ' Exhibit No. 10.
BRASWELL MOTOR FREIGHT LINES, INC., ETC. 115
if J. V. Braswell was going to sign a contract or not the answer was to be, "I don't
know. Mr. Braswell isn't going to sign a contract that will break him." 14
It is also part of General Counsel's theory of bad-faith table bargaining that
Respondents deliberately stalled the beginning of negotiations by filing petitions for
elections in December 1960. According to Wilson, J. V. Braswell discussed the filing
of petitions with him and told him that it would "stir the union up," "obscure" the
Respondents' intentions, and have some nuisance value. He said the subject was
discussed with Attorney Schoolfield within a week Schoolfield asked Braswell if the
Company could win an election and Braswell told him that the Company might win
a few small offices or docks but there was no hope of overcoming the Union as far as
the over-the-road drivers and large docks were concerned Nevertheless, petitions
for elections were filed by Attorney Schoolfield on December 19, 1960. Schoolfield
then sent written instructions and advice to all terminal managers concerning the
filing of the petitions and the likelihood and timing of Board action.'-'
The petitions for election were withdrawn from the Board in early January 1961 by
Schoolfield, and Wilson described the circumstances surrounding Respondents' deci-
sion to do so. The Southwest Operators Association and the Union were still in
negotiations for a new contract in early January. At that time while Wilson and
Braswell were in Schoolfield's office, Schoolfield told Braswell that the Board was
prepared to process the petitions which he had filed. He told Braswell that he had
two choices. He could leave the petitions on file and have the Board direct elections
on them, or he could withdraw them and not be confronted with the "certification
year" doctrine. Braswell said, "Let's withdraw it. It's served it's purpose." Bras-
well added that the petitions had served to stall off negotiations between the Company
and the Union.
One of the most important phases of Wilson's testimony bearing on Respondents'
intentions in bargaining was his account of the selection of the bargaining committee.
In brief, he stated that, after Braswell had selected Schoolfield, Skidmore, and hint as
members in Schoolfield's office, he privately instructed Wilson about his intentions
and strategy. According to the witness, Braswell repeated that he was not going to
sign a contract. He told Wilson that Schoolfield was a lawyer, that he did not know
him too well, but that a lawyer's trade was "compromise." Wilson's job, therefore,
Braswell said, was to keep Schoolfield from negotiating a contract. Specifically, he
was instructed that since he had knowledge of operational matters and Schoolfield
did not, he was to step in and block an agreement, if one appeared imminent, as being
impractical or unworkable on an operational basis. Wilson gave examples of "opera-
tional matters" where terminology is important and needs precise draftsmanship.
One example was so-called "layovers." iii
Part of the theory of the reopened case is that Respondents prepared and pre-
sented a clearly unacceptable proposal to the Union in order to implement Respond-
ents' intention not to agree, to force a strike, and to replace the strikers The South-
west Operators Association and the Union had agreed upon a contract in late
January 1961, effective as of February 1, 1961. Respondents and the Union began
negotiations for an agreement on February 1, 1961. On that date the Union sub-
mitted as its demands the contract which the Operators Association had just signed.
The meeting was short and adjourned to give the Company an opportunity to study
the proposals. Wilson testified that during the next 2 or 3 days, Braswell, Skidmore,
and he went over the Union's proposals and marked them up. Most of the notations
next to paragraphs in the proposals were "delete "
After marking up the proposals the committee went to Schoolfield's office and
handed him the document. Braswell instructed Schoolfield to draw up Company
proposals from the Union's proposals and Braswell's suggestions. Schoolfield looked
1-'Wilson testified in detail about Winebrenner, terminal manager at Fort 117oith at
the time of the meeting in Schoolfield's office, who shortly thereafter, and contiaiy to
instructions, advised employees that Braswell would not sign another union contract
Wilson investigated the mattei. informed Respondents' home office about the remark, and
Winebrenner was discharged for making an unauthorized reference to the labor policy of
the Respondents I fail to see how this evidence supports General Counsel's theory that
Respondents never intended to sign a contract and made statements to that effect Even
on the theory that the discharge was a subterfuge to conceal Respondents ' true intentions
because Winebrenner was merely indiscreet , not inaccurate, the best that can be said is
that the facts are equivocal and no valid inference can be drawn to support the theory
13 General Counsel's Exhibit No 26.
10 See discussion of layover time , I R., section III, C, 8
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the document which had just been handed to him and stated , so Wilson testified,
"My God, you 've cut 'em to pieces; you haven't left anything in them that they can
agree to." Wilson said Braswell laughed and replied, "Well, that 's what we want.
You can draw some up for me." Schoolfield said that he would draw some new
proposals to submit to the Union but that there was nothing in the document which
Braswell had just handed him which the Union "could or would" accept. He added,
however, that the Company could always make new counterproposals.
Attorney Schoolfield prepared counterproposals which were presented to the Union
on February 10, 1961 . Wilson pointed out certain clauses in this proposal which he
said were objectional from the Union 's point of view , and which he said Braswell
and Schoolfield stated the Union could not accept. Some of these items were. the
same wage scale, elimination of a cost-of- living provision , elimination of overtime
pay, provision for payment of pension and welfare contributions directly to employ-
ees rather than into the fund, revision of the grievance procedure, elimination of
checkoff , and other matters Wilson recited some of Braswell 's comments about
these provisions . Braswell said that the Union had worked for years to get premium
pay into industry contracts and would not agree to eliminate it; that if the welfare
contributions were paid to the employees the Union would have a difficult time
getting the money from the employees , that the new arbitration procedure would be
very expensive for the Union in the light of the small amount of dues collected
from each employee ; that, in reference to elimination of checkoff , employees were
not going to walk to the union hall merely to make the payments ; and a provision
for a 6-year agreement would be contrary to the industry practice . Other items
were described as being in variance with the old agreement , and one proposal was
inserted , not because the Company really wanted it, but only to start an argument
during bargaining.
On December 5, 1961 , the Company submitted a second written proposal to the
Union, and , on February 5, 1962, a third which superseded the earlier proposal.
The February 5 proposal contained an offer of a 10-cent-an -hour increase Wilson
testified that the wage offer was put forward only as a screen to cover an unfair labor
practice in company actions surrounding the intended and subsequent elimination of
premium pay for overtime . 17 He stated that Braswell had asked Schoolfield, in
January 1962 , if the Company could abolish the overtime payments and had mis-
understood Schoolfield to say that it could if it was done on a voluntary basis, after
discussion with the employees . Braswell contacted terminal managers and instructed
them to meet with employees and inquire as to how many would accept work without
overtime payments . Wilson said he held such a meeting but later discovered that
Schoolfield had found out about it and had advised that the matter should first have
been discussed with the Union . As a consequence , Schoolfield told Braswell and
Wilson that the Company was in danger of being held in "bad faith bargaining,"
and strongly suggested that Respondents make a concession to the Union at the
same time it proposed the elimination of overtime pay. The February 5 offer of
10 cents, therefore , was tied to the elimination of premium pay as a package proposal.
Wilson testified that it took much argument on Schoolfield 's and his part to get
Braswell to agree to the offer but they convinced Braswell that the Union would
not accept the proposal anyway. He said that Braswell finally assented , saying, "All
right , go ahead, but you guys are going to get me a contract yet." Wilson added that
Braswell's tone was such that he left no doubt that his negotiators had better not
get him a contract.
As set forth in more detail in my earlier report, the employees went on strike on
April 23, 1962.18 Bargaining was resumed in June 1962 , and Wilson testified that
Respondents tried to create an impasse in order to break off bargaining. He said
that at a meeting on June 29, 1962 , Dixon, the Union's negotiator , raised the ques-
tion of wages and asked if the Company 's offer of 10 cents was final. Wilson called
for a caucus and asked Schoolfield if they could tell the Union that the offer was
final. Schoolfield said they could and a deadlock would result. Wilson told School-
field to return to the meeting and state that the proposals were final whcih he did.
According to Wilson, however, Wells , the Union 's attorney , prevented an impasse
by asking to return to unresolved items Wilson felt that the Union was stalling and
told Schoolfield so at lunch . He said that the situation could only deteriorate and
that more meetings would be required . He testified that the ". . . remaining items
in the contract down to wages didn ' t mean much in themselves ..." and that it was
agreed to return to the bargaining table and agree to all of the Union 's demands
17 See I.R, section III, C, 4, the alleged unilateral abolishment of premium pay.
'a I.R., section III, C, 5.
BRASWELL MOTOR FREIGHT LINES, INC., ETC. 117
. . right down the list ...," and get the Union to the wage item so that an impasse
would be reached that day. They did this, he said, and agreed to "... primarily all
matters down to wages," but obtained no deadlock.
Wilson testified that Braswell wanted a strike and had told Wilson so many times.
He said Biaswell said, before the negotiations started, and during the negotiations,
that in order to ". . . whip the Teamsters Union and become a non-union line, we
would first have to have a strike." The Company would become nonunion, Bras-
well said, after the strike was taken and an election held in which the Union would
be voted out. Wilson stated that the Respondents' handling of grievances and the
elimination of overtime payments were examples of acts designed to provoke a
strike. Braswell's remarks about not signing a contract did not change in tenor after
Attorney Schoolfield was hired, according to Wilson. He said that on one occasion
Schoolfield remarked to him that he sometimes gets the idea that Braswell does not
want a contract. Wilson told Schoolfield that he was "beginning to get the idea."
At the original hearing the matter of the reduction of the starting rate for new
employees to $2 per hour was litigated as an example of a refusal to bargain in good
faith.19 Wilson also testified about this matter in the instant hearing. He said he
met with employees in June 1962 and told them that the rate must be reduced. This
was before Schoolfield had advised the Union of the Company's plans. School-
field, upon learning of Wilson's actions, told him to rescind the action until School-
field could talk with the Union. He did so.
The Company made its final proposal to the Union on August 7, 1962. Wilson
testified that Respondents' proposals became progressively worse as time went by,
but that Braswell told him and Schoolfield that he knew that the Union was prepared
to accept anything the Company might offer and that something should be done to
prevent it. Wilson said that the August 7, 1962, proposal was drawn up with that
object in mind.
Wilson resigned from Braswell Freight Lines on May 11, 1963. He testified that
after he resigned he had conversations with Lane Johnson, Respondents' traffic man-
ager, about going back to work for Braswell Freight. These conversations occurred
in July and August 1963, and he described them as follows. Wilson was due to go
to Los Angeles from Fort Worth and was reached by telephone by Johnson the day
before he was to leave. Johnson asked him to meet and they did that evening, at
which time Johnson asked him to return to work for the Company. No agreement
was reached. Wilson told Johnson that he was leaving for Los Angeles the next
morning, and Johnson asked for a ride with him as far as El Paso, the Company's
main office. The two rode together to El Paso and nothing was said during the trip
about reemployment or the circumstances of Wilson's leaving the Company. Wilson
spent the night in El Paso and had breakfast with Johnson the next morning at which
time Johnson asked him to consider reemployment. Wilson promised to do so.
Wilson spent about 2 weeks in Los Angeles and, having found other employment,
telephoned Johnson in El Paso and asked him for a reference which Johnson readily
agreed to supply. Johnson, however, again asked Wilson about returning to work
for Braswell. Wilson testified that he told Johnson that the only condition under
which he would go back to work for the Company was with a 5-year contract drawn
by Wilson. Johnson said he would have to talk with Braswell about it and for
Wilson to telephone him the next evening. Wilson did and was told by Johnson
that Braswell's position was that he gave no one a contract. Wilson said he was
aware of that but actually only wanted to inquire about the reference Johnson
wanted to see Wilson again and, when Wilson told him that he would be returning to
Fort Worth for his family, asked Wilson to stop at El Paso and see him. Wilson did.
Wilson said that he had lunch and dinner with Johnson and that Johnson offered
him a terminal manager position at Los Angeles, subject, however, to Braswell's
approval. Wilson told Johnson that he did not think that he and Braswell could
resolve their "differences" to such an extent as to enable Wilson to return to work.
Wilson testified that "As a prelude to employment, Mr. Johnson offered me a state-
ment to sign," but he refused to sign it. He said he did not recall the exact words in
the statement but that it said, in effect, that Wilson had resigned because of differences
over operational matters, and that if he had given the impression that Braswell had
ever told him that he was not going to sign a contract with the Union he wanted
to correct that impression, because it was false Wilson said he told Johnson that
the statement was not true and that he would not sign it.
10 I.R ., section III, C, 6.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under cross-examination Wilson stated that his differences with Braswell were
operational and not personal . He admitted, however , that he was angry with
Braswell about certain insinuations he made in reference to a female employee, and
that the circumstances surrounding said employee might have had something to do
with his resignation . Wilson said he disagreed with some of the policies in effect
at the Company and was bitter about it. The rumors about the employee and her
discharge created another unhappy situation.
Wilson underwent extensive cross -examination , much of it designed to lay a
foundation for possible impeachment through other witnesses He also testified in
rebuttal. Consideration of Wilson's testimony under cross -examination and in
rebuttal may more logically be considered in a later evaluation of his credibility in
the light of the testimony of Respondents ' witnesses.
Much of the rest of General Counsel's case at the reopened hearing had to do
with attempting to show that Braswell and his supervisors had made other remarks
about Braswell 's intentions about bargaining with the Union which revealed his
determination not to bargain in good faith
Everett Cloer was general manager of D C Hall Transport when Braswell pur-
chased it in 1957. He testified that J. V. Braswell visited his office in Shreveport,
Louisiana , sometime in July or August 1957, and discussed the Teamsters Union
and the labor contract . Cloer stated that the labor contract was due for reopening
and the subject of the Southwest Operators Association was mentioned. Braswell
said he intended to operate the newly acquired company as he did his Texas division
of the Braswell system; namely , nonunion . He added, according to Cloer, that he
had his equipment paid for and $ 2 million in the bank to "fight the cause."
In September 1957, Cloer and the Assistant General Manager Hollenshead went
to Braswell 's office in El Paso to become familiar with the purchaser 's operations.
Cloer said there was a discussion in Braswell's office about the Union but he was
not clear about the details except he recalled that Braswell indicated that the South-
west Operators Association would not represent the new company in bargaining.
Hollenshead testified that he was present in Cloer's office in July 1957 when
Braswell mentioned the existing union contract with the Operators Association which
was about to be reopened . He said Braswell stated that he was operating his line in
Texas without a union contract and it was not his intention to operate the business
he had just acquired under a Teamsters contract. Braswell also said that he did not
intend that the Operators Association negotiate on his behalf in the future , and that
he would so advise the secretary of the Association . At the same meeting, or a later
one, Braswell also said , according to the witness , that he had $2 million in the bank
to fight the Union and that he did not think the Union could beat him. If necessary,
Braswell would drive a truck himself during a strike in order to maintain his permits,
he told Hollenshead . Braswell also stated that his equipment was paid for, and
that, in the event of a strike , he could sell "one piece of it every month and live."
Hollenshead accompanied Cloer to El Paso in September 1957 after Braswell
purchased the Hall operation . He recalled that Braswell stated in a meeting in
his office that he did not intend to negotiate a contract with the Teamsters . Hollens-
head also related a conversation he had with Braswell about the Union but was only
able to fix the time as sometime in 1960. He said that Braswell told him that he
.. didn't intend to sign a contract with the Teamsters and never intended to operate
under another Teamsters contract . If they struck him, he intended to keep operat-
ing his freight lines, and that was what he intended to do " On the same occasion
Braswell said that he expected the Union to strike and he wanted them to, but the
only way to beat the Union was to keep operating.
The General Counsel also offered evidence to show that Braswell and his agents
made statements indicating an intention not to sign an agreement with the Union
at or about the time the strike took place in April 1962. The witnesses were employed
at the New Orleans terminal at the time.
John Henniger testified that his last employment with Braswell was on April 24,
1962, as dock foreman and dispatcher . He saw Braswell at the terminal on the
morning of the strike. Henry Zahn, terminal manager, and H C Hawkins , dock fore-
man in New Orleans , were also present . Henniger stated that Braswell instructed
them to hire the employees necessary to maintain operations and to guarantee them
permanent jobs, since he had no intention of signing a contract with the Teamsters
Union He also testified that Zahn , on numerous occasions in 1962, said that Bras-
well would never sign a contract with the Union He understood this to mean the
contract the other carriers were operating under at the time
Dock Foreman Hawkins also testified that he heard Braswell issue instructions to
hire replacements for the strikers and to guarantee them seniority, because he was not
going to sign a contract . Hawkins added that Braswell also stated that the Union
had been trying to figure out for 2 years what he intended to do, but he had intended
BRASWELL MOTOR FREIGHT LINES, INC., ETC. 119
not to sign an agreement from the very beginning. Terminal Manager Zahn stated
on more than one occasion that Braswell had no intention of signing a union con-
tract, according to the witness. The witness understood Braswell and Zahn to be
referring to the Teamsters Southern Conference agreement then in effect with other
carriers.
Jack Davis was hired in New Orleans as a dock foreman on the day after the strike.
He said that Braswell visited the terminal, sometime in May 1962, and stated that
he never had any intention of signing a contract with the Union and knew it "for
two years." Braswell also said that he "would spend every nickel he had to beat
the union ..." in the strike, even if he had to sell his trucks. Terminal Manager
Zahn also stated that Braswell told him that he never intended to sign a contract
and had known this "for two years," according to Davis, and this was said "on
numerous occasions."
Marcus Bryant worked for Braswell from 1959 until May 15, 1963. He quit when
N. P. Wilson did and was employed under Wilson as a dock foreman at the time
of his resignation. Bryant related various conversations with Braswell purporting
to demonstrate Braswell's attitude and motivation before, during, and after negotia-
tions with the Union.
Bryant had a fight with a union employee sometime in the spring of 1960. Some-
time after that Braswell told Bryant that nonunion employees would be protected
and that he was not going to sign a contract with the Union. Bryant said he spoke
with Braswell several times while negotiations were going on and inquired about
their status. He recalled that after the Company made its February 5, 1962, pro-
posals to the Union, which contained a 10-cent-an-hour wage offer, it was posted on
the bulletin board. Braswell was present and asked one Grindeal, a union steward,
what he thought of the proposal. Grindeal made no comment. Bryant testified that
later that day he mentioned to Braswell that Grindeal did not appear to "go for"
the contract proposal and that Braswell replied that Grindeal was not supposed to.
According to Bryant, Braswell said, ". . . he offered [the wage increase] as bargain-
ing in good faith [but] . . . he knew . . . they could not accept it . . . because every
line would be down on them and that ... the contract was outrageous in every way."
Sometime prior to the strike in 1962, Braswell asked Bryant if he were going on
strike. Bryant said he was going to remain at work and testified that Braswell told
him that conditions were going to improve for employees after the strike, that
employees did not need the Union and that there would be no contract. He also
said that "... the union could break him down to his last truck and he'd either drive
it or open up his oil wells."
Bryant also testified that, sometime in 1963 before he left the employ of Braswell
Freight, he had a conversation with Braswell about a possible Board election. Bras-
well said that the men were entitled to a vote after a year had elapsed, that only the
replacements were entitled to vote, but if they voted for the Union they would be
out with the ". . rest of the son-of-a-bitches." Bryant said Braswell added that
he ". . . would shut his doors before he would sign the contract." Bryant, under
cross-examination, stated that in discussion with Braswell about signing a con-
tract he understood Braswell to mean that he was not bargaining with the Southwest
Operators Association and did not intend to sign the same contract that the other
carriers had signed. Bryant said that Braswell said he would sign the "old" contract
with some changes.
Odell Hatley went to work after the strike at the Memphis dock and was there
from about May 1 to October 1962. During that period W C. Smith was terminal
manager for a time but was later replaced by Van McQueen. Hatley testified that
while he was employed McQueen and Smith both stated that replacements need not
worry about losing their jobs because Braswell was not going to sign a contract
A carrier called Shayler Truck Lines was purchased by Respondents sometime in
February 1963.20 Shayler had employed over-the-road drivers, and R. A Bunch,
superintendent of line drivers for Braswell Freight, interviewed some of them for
employment with Braswell
James Bray, a former Shayler driver, testified that Bunch told him that the new
operation was nonunion and that it was going to be run that way if he and
Braswell had to drive the trucks themselves.
Buddy Stevenson said Bunch told him that the job was not union and not going
to be, and that if he had any idea that the line would be union in the future to forget
"It seems that Braswell purchased Shayler's certificate to operate and not the assets
generally The record is not clear, but Respondents do not appear to be a successor
employer in the usual sense
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it. He said Bunch made it plain that there was no union contract on the job since
the Shayler contract did not apply to the Braswell operation. Stevenson did not
take the job.
B. Actions and statements of N. P. Watson subsequent to his
resignation as affecting his credibility
In its defense Respondents' witnesses denied any improper remarks, actions, or
motivations attributed to them by the General Counsel's and the Union's witnesses,
and, in addition, made a strong attack on the credibility of N. P. Wilson by evidence
purporting to show that he had an admitted bias against J V. Braswell and was in
the pay of the Union, had admitted that the statement he had given the Government
under oath was false and offered to change it, or fail to appear as a witness, if
Respondents would purchase his silence by a contract of reemployment. In view of
the extreme importance of N. P. Wilson in the scheme of things, this evidence will
be considered fist and apart from any internal evidence contradicting or corroborat-
ing Wilson appearing in the long record of events relating to the bargaining as such.
1. Wilson's meetings and conversations with Lane Johnson and Gary Bronson
In his testimony Wilson had described offers of reemployment made by Respond-
ents through Traffic Manager Lane Johnson in July and August 1963, after the
General Counsel had filed his motion to reopen this case based, in part, on Wilson's
affidavit. The "prelude" to employment, however, in Wilson's words, was that he
sign a statement for Johnson that any "impression" he had given that Braswell
would not sign a contract was false. Johnson gave a much more elaborate and
colorful account of this incident in his testimony than Wilson had dryly recounted
in his.
Johnson testified that he telephoned Wilson and asked him to meet and talk.
Wilson agreed and they met in the coffee shop of the Texas Hotel in Fort Worth on
or about July 20, 1963. Wilson told Johnson that he had not been able to accept a
job, although he had an offer of employment in Memphis and decided against it.
He said that the only person he was "mad" at was J. V Braswell, and no one else
Johnson mentioned the General Counsel's motion to reopen and Wilson said he had
heard of it. Johnson asked him if he had signed a statement against Braswell and
Wilson declined to say. Wilson asked for leads to prospective employers and John-
son promised to supply them Johnson arranged a ride to California with Wilson
after Wilson had indicated that he was going there
Johnson agreed with Wilson that nothing eventful happened on their trip to
El Paso and that there was no discussion of this case, but added that the two went
to dinner in Juarez after reaching El Paso and had breakfast together the next
morning At that time Johnson gave Wilson some telephone contacts for jobs in
Los Angeles and gave his own telephone number and home address
Johnson continued in his testimony as follows: On the night of July 30, Wilson
telephoned him from Los Angeles. Wilson said he had a "proposition" to make to
Johnson and there was no need to "beat about the bush about it." His proposition
was that he would go back to work for Braswell if he got a 5-year contract and
$700 a month. He was willing to work either in Fort Worth or Dallas, in operations
or sales, or in Los Angeles as terminal manager. Johnson said he was not authorized
to make such an offer but would check with Braswell and let Wilson know. During
the conversation Wilson said that he would withdraw the statement he had given
the Board, adding that he would not make a statement that he could not "wiggle"
out of. He had, he said, left three or four words out of his statement in case he
wanted to change it at a later date. Moreover, he said that if he could not extricate
himself from the statement he would "hide out" from a subpena. Johnson told
Wilson to call him back the next night, collect.
Wilson telephoned Johnson the next night and told him that he had a tentative
understanding with Western Carloading for a iob He then asked Johnson about his
earlier proposition and was told that Braswell did not give contracts to any of his
supervisory employees, including Johnson and other top officials. Wilson said he
was leaving Los Angeles in the morning and Johnson asked him to stop in El Paso
and talk.
On the morning of August 2, 1963, Johnson received a telephone call from Wilson
to meet in a motel coffee shop in El Paso. Johnson agreed and telephoned his
assistant, Gary Bronson, to meet with them because he wanted a witness. Little
happened at coffee except table talk, and Johnson excused himself to return to his
office to organize the day's work, leaving Bronson, however, with Wilson.
BRASWELL MOTOR FREIGHT LINES, INC., ETC. 121
Around 11 a.m. Bronson telephoned Johnson to tell him that he and Wilson were
adjoining to the private club part of the motel and to meet them for lunch, which
Johnson did Then the conversation about the instant case started and continued
until about 1 30 a.m. the following day.
Johnson admitted that he mentioned the Board proceeding first. Wilson was
telling Bronson why he was angry with Braswell and repeated his proposition about
a 5-year contract at $700 a month which he would write, when Johnson brought up
the General Counsel's motion. Johnson asked Wilson if he had read it, and Wilson
replied that he had seen it, but not read it thoroughly. Johnson accused Wilson of
knowing that the allegations in the motion were untrue but Wilson was noncommittal.
The men talked all afternoon Johnson said that the allegations in the motion to
reopen were fresh in his mind at the time and that he tried to draw Wilson out on
many of them. He asked Wilson, for example, if Wilson knew of any plan to get
rid of the Union and said Wilson said he did not. On other points in the motion
Wilson was evasive or would make comments indicating unawareness of company
impropriety. When Johnson asked him if he knew of any conspiracy on the part
of the negotiators or Braswell not to bargain in good faith, Wilson avoided a direct
answer.
Johnson asked Wilson if he would make a written statement and Wilson again
avoided a commitment. Johnson went to the telephone and dictated a short state-
ment to his secretary after telling Wilson that he planned to do so At 5.30 p m.
they left the club and went to Johnson's office where Wilson read the statement
but refused to sign it. Johnson told Wilson that the statement was "exactly the same
thing that ... (you) told us," but Wilson said, "I know that, but I'm not going to
sign it." Johnson told Wilson that if the statement was not correct to dictate one
that was. Wilson said he was not going to sign anything.
While at Johnson's office Johnson gave Wilson a copy of the motion to reopen
to read. Wilson read the first "three or four" pages and made comments, such as,
"This is not right" or ". . . the company had a perfect right to do this...."
Johnson again asked Wilson why he refused to sign a statement for him although
he had stated that he had given a false impression to the Board, and Wilson said that
he feared trouble with the Board. Johnson handed Wilson a copy of a Board Deci-
sion, which he had just read, and pointed out that the witness in the case had given
two or three statements to the Board. He told Wilson it would not be the first time
it happened. Wilson pushed the case aside and said he was not talking about the
National Labor Relations Board but about a "criminal perjury charge." Johnson
then told Wilson that he had better check with a lawyer about that, and suggested
either the Board, two of Respondents' attorneys of record, or Wilson's own lawyer.
Johnson, Bronson, and Wilson then went back to their motel and later to dinner
in Juarez where they spent the evening, returning to El Paso early the next morning.
Johnson stated that Wilson during the evening, said "essentially the same thing as
he had said . earlier that day." Wilson's anger over rumor's about a woman
were specifically mentioned during the e-, ening session.
Wilson telephoned Johnson about 8 o'clock the next morning and told him he
was ready to leave for Fort Worth. He asked Johnson if Johnson could offer him
the terminal manager job in Los Angeles without a 5-year contract, and Johnson
told him he could not.
Gary Bronson, who accompanied Johnson in his meetings with Wilson as just
described, is Respondents' assistant traffic manager under Johnson. He had worked
for Respondents from 1955, but had taken a job with another company in April
1963, which lasted only a few months. On the Friday morning, August 2, that he
met with Wilson and Johnson, he was due to return to work with Respondents on
the following Monday. He had a busy weekend intervening, however.
After Johnson returned to his office for a while, as set forth in his testimony,
Bronson and Wilson talked in Wilson's room at the motel According to Bronson,
Wilson there stated that he wanted to go back to work with Braswell and it made
no difference where it was as long as he was given a 5-year contract.
Bronson also testified, in corroboration of Johnson, that at lunch Wilson said he
was "mad" at Braswell and had given a statement to the Board that had left a "false
impression." Be gave the statement because he was angry and wanted to "get back
at" Braswell. Bronson said Wilson gave his reasons for his anger at Braswell as
being Braswell's spreading of rumors about Wilson's private life, and the appoint-
ment of George Logan to a job which Wilson thought he should have. Wilson said
he knew moie about the freight business than Braswell or Logan or anyone else.
In addition, Wilson stated that he had had differences with Braswell over opera-
tional matters and had heard that someone was being trained to replace him. These
factors added to his anger.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bronson recalled that when Johnson told Wilson he was going to the telephone
to dictate a statement which Wilson could sign later, Wilson "just grinned and
shrugged his shoulders " Before the men left for the terminal at 5.30 p.m., Wilson
repeated that he wanted to return to work for Braswell, but that he wanted a 5-year
contract. During the afternoon, Wilson also said that he had given a statement to
the Board but that it could be withdrawn at any time. He said, moreover, he had
left four words out of his statement which implanted a false impression, but that
they knew him well enough to know that he did not build traps for himself. He
said he could get out of this trap because he had a friend at the Board.
At the Company office Wilson refused to sign the statement which Johnson had
had prepared. Bronson testified that Johnson told Wilson that the statement was
truthful and was what Wilson had told them that afternoon. Wilson replied, "That
may be," but refused to sign. Johnson said he would prepare another statement and
picked up a voice recording machine microphone and handed it to Wilson saying,
"Go ahead. Dictate your own statement." Wilson demurred, stating that he did
not know how to work the instrument.
Bronson said Wilson was given General Counsel's motion to reopen to read. Wil-
son read a few pages and made comments like, "That's wrong" or "the Company had
a perfect right to do this." Bronson was not able to specify what particular part of
the document Wilson's comments applied to
Bronson also recalled that Wilson told Johnson that he would not sign the state-
ment, not because he was worried about giving a contradictory statement to the
Board, but was concerned about a criminal action. Johnson suggested seeing a
lawyer, including in his list the Company's counsel. Bronson said that the men
did not discuss the case very much at dinner that night. He did add that Wilson
stated he had been offered employment by another employer in California, but that
he would rather go back to work for Braswell. He also remembered that, in refer-
ence to Wilson's desire to return to work, Johnson said, "I couldn't offer you employ-
ment for Braswell; you'd have to make your own It looks to me like the first thing
you've got to do is clean up the false impression you left with the Labor Board
Business is based on trust "
2. Wilson's meeting with Respondents attorneys,
Allen Schoolfield and Hugh Smith
On August 6, 1963, the day the Board by telegraphic order reopened this case for
a new hearing, Wilson appeared at Attorney Schoolfield's office in Dallas School-
field is attorney of record in this case, and also represented Respondents at the first
hearing He has an associate in his office, Attorney Hugh Smith Schoolfield and
Smith testified about Wilson's visit at length. Business still being based on trust,
they talked with Wilson together
Schoolfield testified that Wilson walked into his office, without other prior com-
munication from him, and stated, "I'm ready to make peace with Braswell if he's
ready to make peace with me." Wilson asked Schoolfield to telephone Braswell.
Schoolfield said he did not know what Wilson was talking about, and the two began
to talk. Wilson told Schoolfield that he had a job in California but that he would
return to work for Braswell if he got an "ironclad contract" After some additional
conversation, Wilson posed a hypothetical question to Schoolfield as a "friend " He
asked what the legal effects of giving contradictory statements to the Government
were and whether the Government would make him testify. Schoolfield summoned
his associate, Smith, to the meeting The problem was repeated in Smith's presence.
and Smith told Wilson that, in his opinion, the Board would put Wilson on the stand
and introduce the statement. Wilson said that he had given a statement to the
Board but had left out some words to protect himself.
Schoolfield had a luncheon appointment and left Wilson with Smith Before he
left, Schoolfield gave Wilson a copy of General Counsel's motion to reopen this case
and asked Wilson to read it because Schoolfield wanted to talk with him about it
when he returned.
When Schoolfield returned to his office after lunch Wilson and Smith were sitting
in his office. He handed Wilson his copy of the motion to remand and asked Wilson
if he had read it through Schoolfield then proceeded to go over the motion with
Wilson "word, by word."
Schoolfield testified that Wilson made certain comments and admissions to him as
he read the motion, paragraph by paragraph. Examples are: "Fight the Union" in
paragraph two, Wilson said, meant making everyone live up to the labor contract
Regarding a quota of warning letters mentioned in paragraph three, Wilson said he
knew nothing about quotas, but that all managers were told to give warning letters.
BRASWELL MOTOR FREIGHT LINES, INC., ETC. 123
Regarding paragraph four and grievance handling, Wilson said that he and
Respondents' attorney would settle grievances which had merit With respect to
paragraph five of the motion, however, about Braswell making plans not to sign a
contract and force a strike so that union employees could be replaced, Wilson
laughed and said he would have to "check his statement "
Wilson refused to respond to Schoolfield's assertion that the allegation in para-
graph five about filing representation petitions in bad faith was a lie, but made
certain remarks indicating a lack of merit in other assertions in that paragraph of the
motion, such as, Respondents' strike plans and tariff filings.
Wilson flatly stated that the allegation in paragraph six of the motion about
elimination or premium pay in order to force a strike was not true. When Schoolfield
read paragraph nine, however, about Braswell stating that he was not going to sign
a contract with the Union, and asked Wilson if he had told the Board that, Wilson
avoided the inquiry and again said he would have to check his statement.
In regard to the allegation in the second paragraph of paragraph 12 of the motion
about the Company's treatment of the Union's proposals, Wilson avoided an answer,
but he bluntly admitted, when asked by Schoolfield, that he did not tell the Board
that he had specific instructions from Braswell not to negotiate a contract.
Wilson also admitted, according to Schoolfield, that the Company's proposed
grievance procedure was not designed with the expectation that the Union would
refuse it, and that concessions by Braswell were not for the express purpose of
avoiding a refusal-to-bargain charge before the Board, as asserted in the last para-
graph of paragraph 12 of the motion.
Schoolfield said that Wilson had told him during the day that his statement was
"incomplete and misleading." Before Wilson left the office, therefore, he told
Wilson that it was his duty to correct the statement before the Board, but that they
could give no advice about not testifying or avoiding a subpena.
Hugh Smith generally confirmed Schoolfield'st ount of Wilson's visit. He was
called to Schoolfield's office and there was a discussion of perjury on a hypothetical
basis Finally, Wilson admitted that he had given a statement to the Board. School-
field then questioned him about the circumstances under which he had given it, and
during this interrogation Wilson said that he did not receive a "dime" for his
testimony but did get certain "assurances" from the Union Schoolfield asked him
what kind of a statement he had given and Wilson said he would have to look at it,
but he had given it in such a way that it could be easily changed because he had icft
"three little words" out of it Smith also stated that Wilson wanted Schoolfield to
telephone Braswell by 3 p.m., because he had to notify another employer in
California by that time about his plans. He said, however, that he wanted to go
back with Braswell if Braswell would give him a contract
Smith testified that after lunch he sat in Schoolfield's office so close to Wilson
that he could look over his arm as Wilson read the motion to remand. Smith sub-
stantially corroborated Schoolfield's version of Wilson's attitude and remarks as
Schoolfield went over the motion. Smith, unlike Schoolfield however, said that
Wilson said in reference to paragraph six about premium pay that he would have to
read his statement. He did not say that Wilson said the allegation was false, as
Schoolfield recalled.
Smith also recalled that Wilson told him that he was "mad" at Braswell when he
left the Company, but had a chance to think about it since and wished he were out
of the "whole mess." He also added that Wilson, during the afternoon session, tried
to get off the subject of the motion to remand and his statement, and stated at one
point that it was near 3 p m and Schoolfield ought to telephone Braswell to find
out if Wilson was going back to work. No call to Braswell was made until Wilson
left the office.
At this point in our chronology the Board had just issued an order remanding the
proceeding to the Regional Director, and Wilson had, coincidentally, just had his
meeting with Schoolfield and Smith. On August 12, 1963, the Regional Director
issued an amended complaint and set the case down for hearing for October 1,
1963. On August 26, however, Wilson had a conversation with an old friend which
is urged by Respondent as another example of Wilson's asserted unreliability.
3. Wilson and Robert Daring conversations
Robert Daring, former terminal manager at Fort Worth, testified that Wilson tele-
phoned him to meet for coffee on August 26 and they did He had known Wilson
for over 30 years and had hired him twice in the past. He said Wilson told him
that he had been to Los Angeles, with Lane Johnson for company as far as El Paso,
and that he had made a second trip to Los Angeles to see one Hackler, a union
attorney. Wilson, according to Daring, asserted that he was going to try to help
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Teamsters in a lawsuit filed by Braswell against it in California . Daring inquired
how this could be done and Wilson told him that they had to prove that Braswell
had committed unfair labor practices on the Braswell system in Texas, Louisiana,
and Oklahoma . Daring commented that he did not see how this could be shown
because Braswell had been cleared of these charges . Wilson replied, "Yes , but we're
going to get the case reopened . We're bringing in some new evidence and I'm
going to try to help them crucify him."
Daring reproached Wilson for his attitude , stating that Braswell had been good
to him in the past , but Wilson retorted that he was trying to "feather his nest" and
wanted to "get even" with Braswell.
Wilson told Daring that he was not "very smart" and he ought to come in with
Wilson and ". . . testify to what I tell you to and you can get a better paying job
any time you want it." Daring said he thought Wilson was making a mistake and
that he could not testify to a "bunch of lies ," but Wilson responded that, "It's not
exactly lying, its just shading the truth here or there ." Daring said he would not do
such a thing and Wilson told him that he would, because he wanted to get even
with Braswell.
Daring also related a conversation with Wilson shortly after Wilson resigned from
the Company . Wilson entered a restaurant where Daring and employee Pruitt were
having coffee and joined them. Wilson referred to the gossip about a female
employee and was "bitter" about it. Daring asked him why , if the stories were lies,
he did not sue Braswell for spreading them and Wilson replied, "Well , I'll do some-
thing better than that."
Melvin Pruitt, Fort Worth terminal manager at the time of the hearing but a
salesman in May 1963, testified that he heard the conversation between Daring and
Wilson as just set forth . He said Wilson made remarks indicating displeasure with
Braswell and also commented tllLat he had "... something better than that" when
Daring suggested that he sue Bras ell.
4. Wilson and William Nystrom
As also indicating bias by Wilson against Braswell , William Nystrom , a company
auditor, testified that he audited Wilson 's terminal, as was customary when someone
is fired or resigns, and had a conversation with Wilson at the time. Wilson asked
him if he had brought his vacation check but Nystrom had not. Wilson, according
to Nystrom , said that Braswell was up to his old tricks and that he would "... get
that old son of a bitch yet."
5. Conversations with James Bunch
James A. Bunch was line driver superintendent for Braswell Freight Lines in 1963
until he left the Company in September. He is the Bunch who interviewed the former
Shayler drivers when Braswell took over the operation . He knew Wilson and testi-
fied to conversations with him offered to show Wilson's bias and interest in the case.
Bunch 's brother, R . B. Bunch, is a Teamsters International representative. James
Bunch testified that he received a telegram from his brother in late May 1963 asking
Bunch to meet him at the Shreveport Airport to discuss something important. James
Bunch met his brother and the men talked. R. B. Bunch told James that he under-
stood that James was going to be fired and that Wells, the Union 's lawyer, had called
R. B. Bunch , informed him that they were trying to reopen this case, that they had
two witnesses , and if they could secure James Bunch's testimony it would justify the
reopening of the case . R. B. Bunch suggested to his brother that if he were going
to be discharged this was a good opportunity to get back in the good graces of the
Union. The men talked for 30 or 40 minutes and parted.
Bunch testified further that , around the first part of June, he "walked" into a
restaurant in Dallas and observed Wilson and a clerk in the Dallas terminal eating
dinner . He joined the men and Wilson expressed surprise that Bunch had not been
discharged . Bunch said that was news to him. The clerk left, and Wilson and
Bunch were together for an hour and a half or more . Bunch showed Wilson the
telegram he had received from his brother and Wilson observed that ". . it was
important , wasn't it." Bunch commented that he did not understand what was
going on . Wilson explained that he had been informed by a Board agent that the
case was to be reopened because the man who had ". . . handed down the decision
in the last hearing had decided he 'd made a mistake...."
Bunch said Wilson was "down on the company" and said Braswell was "going to
lose this time " He warned Bunch that he too stood to lose and had ". . . better try
to feather [his] nest" while he could Wilson commented on the number of witnesses
who had made statements to support the reopening , and indicated that high Braswell
BRASWELL MOTOR FREIGHT LINES, INC., ETC. 125
officials were involved. He said the only witness Braswell would have would be
Schoolfield, and that all he could do would be to repeat ". . . what he had already
told." Wilson urged Bunch to "... think this thing over and not take too long to
make up [his] mind ..." because soon "they" would have "enough witnesses" and
it would be "too late" for Bunch.
Bunch telephoned Wilson in about a week and Wilson told him to meet him at a
restaurant. The men met and talked for awhile and Wilson said he had an appoint-
ment but would Bunch like to join him, which he did. Wilson drove his car and
while driving told Bunch that he was going to see Ralph Dixon, International repre-
sentative for the International Union and secretary-treasurer of the Policy Com-
mittee of the Southern Conference of Teamsters.
On the way to Dixon's office the men talked about the Union. Wilson asked
Bunch how much he trusted the Union and how he would react if the Union made
him an offer. Bunch said he would not rely on a mere promise. Bunch said that
Wilson stated the Union had ". . . guaranteed him a job of [sic] $20,000 for two
years.... " Wilson explained that, if he became employed but was later laid off,
the Union would pay him at the rate of $10,000 a year for a maximum of 2 years.
Bunch also recalled that Wilson indicated that he was unhappy with the Union
because he did not get the job he was promised. Wilson said, according to Bunch,
that the Union thought it "had" him but it did not, because there were "four words"
left out of his statement which would have ". . . carried it one way or the other......
In Dixon's office, Bunch was introduced, and Wilson and Dixon engaged in a low
conversation. Bunch said he heard Wilson say that ". . . something gonna have to
happen, I've already started digging." Dixon said that he might have to put Wilson
on the payroll and start him organizing. Dixon asked Bunch if he would like to
talk with him or with Bunch's brother, R. B. Bunch, and Bunch said that he would
prefer to talk with his brother. Dixon telephoned R. B. Bunch and put James Bunch
on the telephone. The brothers made an appointment to meet at the Dallas airport
the following Saturday.
Bunch met his brother at the airport as arranged He said his brother talked about
the reopening of this hearing and asked Bunch why he did not get out of Braswell
while he could. James Bunch said he had no money or job and asked what he could
get out of it. Asked what he wanted, he dodged and asked what he could get. His
brother said "I don't know, boy, whether you can get anything, we're not buying
those statements." R. B. Bunch said that some money had been appropriated, how-
ever, and went to make a telephone call. When R. B. Bunch returned he told his
brother that ". . . money will be no problem if ... you've got the information we
need." He asked James if "... eight or ten thousand dollars [would] do it," but
James said it would not.
6. Wilson's account or explanation of his statements
and actions after his resignation
Wilson was called in rebuttal and questioned about the testimony of Respondents'
witnesses concerning his activities subsequent to his resignation.
About Bunch, he said there was no conversation about any testimony to be given
in this case in their first meeting around June 1. On or about June 12, however,
Bunch came into a restaurant and told Wilson he would like to talk with him.
Present for a few minutes was a Mr. Barker who Wilson said told Bunch and him
that he had signed a statement for the Board in relation to the Braswell case, and said
he knew that Wilson had too. Wilson brushed the remark off, he said Barker left,
and Bunch showed Wilson the telegram from his brother. Bunch then told Wilson
that he was on the verge of being fired and wanted to talk to someone with the
Union about the things he knew about Braswell. Wilson suggested Ralph Dixon
and volunteered to take Bunch to Dixon's office, which he did. In Dixon's office
Bunch told Dixon that he wanted to talk about the Braswell matter but first he
would like to speak with his brother. Dixon reached R. B. Bunch in Miami and
Bunch talked to him privately while Dixon and Wilson stepped out. Union Repre-
sentative Bunch flew to Dallas and a meeting was arranged for James Bunch and
R. B. Bunch with Attorney Wells in his office on Sunday.
Bunch told Wilson after they had left Dixon's office that he would need help from
the Union because he would be out of work. Wilson denied that he told Bunch
that he ought to feather his nest; that he ought to join up with Wilson's "side" to
get some money or something of value out of it; that he should act quickly or it
would be too late; that he said he was "sore" at Braswell; and that the hearing
would be reopened.
126 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
He specifically denied telling Bunch that the Union had guaranteed him a job for
2 years or $20,000 in lieu thereof. Neither did he tell Bunch that he had given
the Board a statement.
Bunch telephoned Wilson a week later and asked to see him again. They met and
Bunch told Wilson that he had been to Wells' office as arranged and told him about
certain things he could testify to. He said Wells asked him to put the information
in a statement foim and he said he would for $10,000. Wells told him that the
Union was not buying information or testimony. Bunch told Wells that it was that
or nothing At this point Wilson said he could have told Bunch that he would get
no money, and Bunch asked him what kind of assurances Wilson was getting from
the Union Wilson told him that the Union had informed him that they would help
him get a job as long as he needed it and he agreed that he would need assistance
for 2 years because it would probably take that long to get reestablished in the
industry.
Bunch telephoned Wilson a few times after that. In one conversation he told
Wilson that he was leaving Braswell and that Lane Johnson wanted to talk to Wilson.
Wilson said he had also been informed by others that Johnson was looking for him.
He said he told Schoolfield at one time that he had heard that Schoolfield wanted
to see him but Schoolfield said it was Johnson who did and that he could get him
down from Oklahoma City quickly to speak to Wilson. Wilson told him he did
not think they had anything to talk about.
Wilson did meet Johnson, however, in the coffee shop of the Texas Hotel on
July 18, as set forth in his and Johnson's earlier testimony. He denied saying that
he was niad at Braswell, and stated the conversation about a girl was in a light
vein. He said Johnson told him he had heard that Wilson had made a statement
to the Board but would not ask him about it. Wilson said that was fine because he
probably would not answer anyway. He denied he told Johnson that he had met
Robert Daring who had made a statement which offended him. This was in reference
to what had caused him to make a statement against Braswell.
About the El Paso visit on August 2, 1963, he denied that he at any time offered
to withdraw the statement he had made to the Board and said he did not even
tell them that he had made a statement He denied that he said he had left words
out of a statement or could otherwise "wiggle" out of it. He denied that he said
the statement was false. He said the girl was never mentioned.
In regard to Robert Daring's testimony, he said he recalled a number of con-
versations with him after his resignation In the first conversation, shortly after he
resigned, Daring started the discussion about the gossip connecting Wilson to a
woman. According to Wilson, Daring told him that Braswell was responsible for
the rumors and that Wilson ought to sue him. Daring offered to supply Wilson with
an affidavit and asked for a share of the damages. Wilson told him he was "nuts"
and dropped the subject. At that moment Pruitt walked in, and nothing significant
was said after that, Wilson said. Wilson denied that he said he had something better
in mind than suing Braswell.21
Wilson recalled the second conversation with Daring in a restaurant in late August
1963, but denied telling Daring that his trip to Los Angeles had anything to do with
helping the Teamsters in Braswell's lawsuit against them. He said he did not ask
Daring to "throw in with" him and testify to lies or "shade the truth." He stated
that the testimony to be given at the instant hearing was not even discussed, because
he avoided the matter since it was a "touchy" subject and he would not have dis-
cussed it if it had been brought up.
After Wilson had first testified on direct as General Counsel's witness, he had
been cross-examined by Respondents' counsel about his visit to Schoolfield's office
after his return from El Paso where he had seen Johnson. He said he went to see
Schoolfield because Johnson suggested he see a company lawyer who would advise
him that there was no legal danger in changing his affidavit. Johnson had also said
during their meetings in El Paso that he wished that Braswell and Wilson could
sit down together and resolve their differences so that Wilson could come back to
work for Braswell. Because of these suggestions, Wilson visited Schoolfield in
Dallas. He stated in this earlier examination that he asked Schoolfield where Bras-
well was and was told that he was in Oklahoma City. He denied that he said he
wanted to make peace with Braswell if Braswell was ready to do the same He said,
however, that he told Schoolfield that, although he did not think he and Braswell
could resolve their differences, as Lane Johnson had suggested, he was willing to
"sit down over a cup of coffee with Mr. Braswell." He then asked Schoolfield a
u Wilson also denied that he was annoyed when his vacation check was not delivered
and that he told Nystrom, the auditor, that he would "get" Braswell.
BRASWELL MOTOR FREIGHT LINES, INC., ETC. 127
question as a "friend." The question was whether Schoolfield would advise a person
to sign an affidavit stating that a prior affidavit was false. Schoolfield called Smith in
and the question was posed to him. Smith studied the question for awhile, but, in
the meantime, Schoolfield told Wilson that he would not advise such a course of
action. Wilson told Schoolfield that Johnson had asked him to do just that. At
that time a discussion arose about how a "modified statement" could be made by the
witness, with all participating in the discussion. Wilson denied, however, that he
told either attorney that his prior statement to the Board was "incomplete and mis-
leading." He said that Attorney Smith made a comment that an explanation or a
"completion" of a statement could give it a different meaning and that he agreed.
He admitted that Schoolfield told him it was his duty to correct his statement if it
were "incomplete and misleading."
In the earlier cross-examination by Schoolfield, Wilson recalled that he had lunch
with Smith and returned to Schoolfield's office for a "few minutes." He first said
he did not recall what they talked about when they returned to the office after lunch
but admitted that the General Counsel's motion to reopen the record was discussed
and that Schoolfield had handed him a copy of it On the other hand, he said he
did not recall going over the motion with Schoolfield "word for word." He agreed
that Schoolfield had asked him about "fighting the union," insisting that it could
have meant stopping what Braswell considered bad practices, but said he "laugh-
ingly" replied that such was "one way of looking at it." In sum, Wilson's testimony
about the motion to reopen is that Schoolfield did not go over it in detail, as School-
field and Smith testified, and that he made no damaging admissions about any part
of it.
When Wilson was called in rebuttal, he was referred to the School field-
Smith-Wilson meeting of August 6, 1963, and again denied that the motion had been gone
over word for word. He denied that he had even told the two attorneys that he had
signed an affidavit for the Board, or that he had left out some words, or said any-
thing to that effect. He also said that he did not ask Schoolfield to telephone Bras-
well before 3 p m. to find out if he could return to work. He was asked if he
had reread his earlier testimony under cross-examination on this subject and if he
wished to add anything, but he replied that he knew of nothing he wished to change.
He specifically testified, however, that he did not say that much of what was con-
tained in General Counsel's motion was "wrong" or incorrect, or that he had no
instructions not to negotiate a contract. He also denied that he had told the
attorneys that he was "mad" at Braswell when he gave a statement.
As a witness in rebuttal Wilson also testified about a meeting with Lane Johnson
and Ward Bailey, another of Respondents' counsel of record, on the night before this
hearing reopened. Wilson was not asked about this subject when he testified on
direct examination or under cross-examination earlier, but the matter had been some-
what developed in General Counsel's cross-examination of Lane Johnson. In rebut-
tal, Wilson testified that on the evening before the hearing opened he got a telephone
call at work from Johnson and Bailey. Later, about 10 p.m., as he was ready to
close the business he managed, Johnson and Bailey arrived and invited him to have
a drink. The three went to a bar and spoke for some time. Wilson said that
Johnson asked him "to help [them] out" when he was on the stand because it meant
a great deal to Johnson personally. Wilson said he knew it did and Johnson said
that Wilson was able to do it because there were "four little words" which were the
key to the whole case that Wilson could add to his testimony Wilson denied that
he knew what the words were, and Johnson told him that Braswell would not sign
a contract "that would break him." Bailey and Johnson then discussed the best
"time and place" for Wilson to "mess up" his testimony. Bailey thought he should
do it on direct examination and Johnson was insistent that it be done under cross-
examination. Wilson said the two had quite an argument, but he merely sat, drank
his beer, and listened.
Wilson and Johnson returned to a hotel coffee shop after Bailey left. According
to Wilson, it was now around 1 a.m. In the conversation at the coffee shop Johnson
"again went over the thing" and assured Wilson that he could go back to work
for Braswell, whenever he wanted, at the Los Angeles terminal. He told Wilson
to think it over and "sleep on it "
Johnson's version of his and Bailey's visit with Wilson is found in Johnson's
cross-examination. When he appeared that night he asked Wilson to join them for
a drink and Wilson accepted. At the bar, Johnson asked Wilson if he were to be a
witness and Wilson told him he was. Johnson told Wilson that he knew that
.. Mr. Braswell would have signed that contract if they had given him one that
he could have lived with and made money." Wilson avoided a direct answer, and
Bailey accused him of being "sanctimonious," but Wilson was again noncommittal.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson said that, as they left for the coffee shop, Wilson, who had a legal-sized
document in his possession, said he had to study his testimony.
Johnson denied that he asked Wilson to "take it easy" on the witness stand but
said he asked Wilson to make a "careful search of his heart " He said that he did
not offer Wilson a job that night but that Wilson mentioned that he never really
expected to get a 5-year contract.
Johnson admitted he asked Wilson if he remembered "four words" but said those
were the words that Wilson told him in El Paso he had left out of his statement. He
described them as "magic words," but said that Wilson never told him what they
were. Johnson admitted that he might have mentioned the words "that may break
me" to Wilson. Johnson also conceded that there was some conversation about
Wilson changing his statement and that he may have "made the remark" that it
could be done on cross-examination or on direct examination as Wilson preferred.
C. Evaluation of Wilson's credibility in the light of the testimony
about his actions after his resignation
I find that Wilson did not give a complete and wholly truthful account of all of
his statements and actions contained in his meetings and conversations with various
of Respondents ' agents and employees as described above, and that, as a conse-
quence, his testimony on the merits of the case , which will be analyzed later, must
be viewed with a great deal of suspicion and skepticism . I come to this conclusion
for the following reasons
In the first place, I do not believe Wilson's version of his two meetings with Robert
Daring, and find that Daring was the more credible witness. Soon after Wilson's
resignation he exhibited a bias toward Braswell in his conversation with Daring
and indicated that he was going to do something more than sue Braswell for slander.
Employee Pruitt heard part of the conversation and corroborated Daring In Wilson's
second conversation with Daring , on of about August 26, 1963, after this reopened
case had been scheduled for hearing , he told Daring that he was helping the Union
and by so doing was getting even with Braswell. Wilson also asked Daring to join
Wilson in testifying and to "shade the truth ." Wilson denied these conversations,
as set forth in detail above . He testified that he avoided discussing this reopened
case because he knew he was to be a witness and it was a "touchy " subject He did
not hesitate , however, on the very night before this hearing began, to visit with an
official of the Company and the Company 's attorney for hours and listen to them
discuss how he could alter his testimony the next day . Wilson knew Daring for
over 30 years , and I cannot believe he was as sensitive about discussing his role in
the case with Daring as he said he was.
I also credit William Nystrom , the Company 's auditor, who checked Wilson's
terminal after his resignation , as against Wilson, and find that Wilson displayed
extreme displeasure when his vacation check was missing and said that he would
"get" Braswell . Wilson's account did not ring true and, moreover , Wilson 's asserted
display of animus is not only corroborated by Daring and others, but fits other facts.
It may be that Wilson was an innocent victim of malicious rumor about a pregnant
employee, but there is no question that the situation was a factor which precipitated
his resignation and that he was bitter at the time . Wilson substantially admitted as
much. I also think it natural that he attributed some of his troubles in this respect
to Braswell who wanted a compromising situation resolved. Wilson 's statement
that his resignation had to do with "operational differences" was never amplified by
him, and I credit the testimony of Respondents ' witnesses that Wilson was "sore"
and "mad" at Braswell for reasons which were not merely "operational ." 22 Included
were pique over failure of promotion , belief that he was better able to do a job
than others, and extreme irritation over Braswell 's real or fancied role in dissemina-
tion of gossip . In addition, Wilson had many years with Braswell , and, by his
own admissions , disliked and "fought" the Union ; yet within about 2 weeks of his
resignation he was in the camp of his "enemy" and had given a comprehensive
statement against Braswell It must have taken strong motivation to effect such a
turn around.
Respondents argue that Wilson's other conduct, such as his meetings with Johnson
and Bronson in El Paso, his visit to Schoolfield 's office , where he spoke to both
Schoolfield and Smith, and his "eve of hearing " chat with Johnson and Bailey, show
a man with testimony for sale who found no buyer, and whose testimony , therefore,
22 Lane Johnson, Gary Bronson, Allen Schoolfield, and Hugh Smith also testified about
remarks made by Wilson indicating a breach with Braswell.
BRASWELL MOTOR FREIGHT LINES, INC., ETC. 129
is worth absolutely nothing. I think Respondents overstate the effect of Wilson's
meetings with them, even if their own version is accepted, and play down their own
roles in the scene. It cannot be overlooked that where someone is selling, someone
is usually buying, and I am convinced that all sides, Wilson, as well as the company
officials and their lawyers, weie and are embarrassed about discussing testimony
and jobs prior to a scheduled appearance of a key witness in a Government hearing,
and have, therefore, tended to exaggerate or minimize their parts, as the case may
be, in their own self-interest. Bluntly, I credit none of them completely, and
although I think Respondents' pursuit of Wilson from the time it learned or deduced
that he was to be the main witness up to the very evening of the hearing was dis-
graceful, Wilson's coy participation in the chase was equally deplorable and com-
promising. By his conduct he further injured his credibility, but, as I have said,
the hare and hounds game reflects on all and I have taken it into consideration in
my credibility findings, as follows:
Starting at the last meeting of the protagonists, the 3-hour session in a bar on
the night before the hearing opened, I am convinced by the occurrence in all its
impropriety, ignorance, stupidity, and recklessness that Respondents were offering
Wilson a job on condition he change his testimony, and that Wilson was at least
exploring the possibilities of a deal, but was unable to consummate it. The incident
damages Johnson's credibility as well as Wilson's and indirectly affects J. V. Bras-
well's. Braswell's testimony has not yet been set out, but in it he stated that after
Wilson left Schoolfield's office on August 6, 1963, Schoolfield telephoned Braswell
and told him that Wilson wanted a 5-year contract. Braswell said he told School-
field that he would not "buy Wilson a cup of coffee" to keep him "off the stand"
in this hearing. Yet, the night before the hearing, Johnson, Braswell's close asso-
ciate, and Bailey, an attorney who normally handles his Interstate Commerce Com-
mission legal work, are found entertaining Wilson with more than coffee. It is a
fair inference that Braswell knew what was going on and was responsible for the
offer of a job to Wilson. I credit Wilson in his testimony that Johnson offered him
the Los Angeles terminal manager's job that night, asked Wilson to "go easy" in
his testimony the next day, suggested that Wilson could add three or four words
to his testimony in order to change its meaning, and could do it either on direct or
cross-examination. I discredit Wilson, however, where he implied that he did not
know what "three or four words" Johnson had in mind as additions to his testimony.
I also find, as Johnson testified, that Wilson told Johnson that evening that he never
really expected to get a 5-year contract from Braswell.
After Wilson resigned, Respondents initiated the first contract with him, and it is
clear to me that they did so because they knew that Wilson was a threat. Johnson
telephoned Wilson in July and they met as described in Wilson's testimony. I find
that Johnson first broached the subject of reemployment and offered Wilson an unspec-
ified job. The General Counsel's motion to reopen was mentioned but Wilson side-
stepped a response. Johnson, who certainly was not dependent on Wilson for trans-
portation, begged a ride to El Paso. Before Wilson left for Los Angeles, Johnson
again asked him to consider the matter of reemployment. Wilson went to Los
Angeles and, for reasons of his own which very likely was his inability to obtain satis-
factory employment, telephoned Johnson and offered to return to Braswell if offered
a 5-year contract This much Wilson admits, but I find, in addition, that there was
discussion in the telephone call about Wilson's statement and that Wilson indicated
that he would withdraw or change the statement he had given the Board. Although
Wilson testified that he did not tell Johnson that he had made a written statement and
also denied that he had admitted such to Schoolfield and Smith in his meetings with
them, I find that the inquiry and testimony about whether he flatly stated at a given
time that he had given the Government an affidavit, and was, therefore, the key wit-
ness, is all superficial nonsense, because all experienced persons must have known that
Wilson had to be the witness whose testimony would support the General Counsel's
motion.23 Therefore, Wilson and Johnson were realistically connecting reemploy-
ment with Wilson's testimony, at least in their own minds, and they understood each
other, no matter how diplomatic was their language. Johnson took Wilson's proposi-
tion about a 5-year contract up with Braswell, as he told Wilson he would. Wilson
got a negative response to his offer when he telephoned Johnson the next evening, but
he was invited to visit El Paso again, which he did. All of this elaborate telephoning
and meeting indicate, of couise, that the parties were discussing something much
more important than just hiring a terminal manager.
za Schoolfield , Johnson, and Braswell substantially admitted as much in their testimony.
206-446-66-vol. 154-10
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wilson stopped in El Paso and spent a day and evening in Johnson's and Bronson's
company. Again, this much attention is more than a mere hiring deserves, and I am
sure that all were aware of it I find that Wilson's testimony was discussed during
that visit, and I resolve the conflicts in the evidence as follows:
I credit Bronson's testimony that Wilson told him early on the morning of August 2,
1963, when they met in El Paso, that Wilson wanted to go back with Braswell at
any location, provided he was given a 5-year contract. Wilson also told Bronson, so
I find, that he was "mad" at Braswell when he had given his statement to the Board
and had left a "false impression" in the statement. Wilson also gave his reasons for
being "mad" at Braswell. I find that a discussion of Wilson's statement and his pos-
sible return to work continued during the day and that, although Wilson never actually
stated in so many words that his statement was false, he clearly conveyed to Johnson
and Bronson that the statement could be altered to convey a different meaning. When
Johnson had a statement prepared for Wilson to sign, Wilson refused. He testified
that he did so because the statement was not true I discredit him and find that Wilson
made an evasive comment to Johnson's charge that the statement was merely what he
had told the men during the day
I also find that Wilson was given a copy of General Counsel's motion to reopen the
hearing by Johnson and that he did read part of it. I find that he made no statement
flatly disputing the truth of any allegation in the motion but cleverly implied that the
motion was unsupported by fact by such vague statements, as "the company had a
right to do that " My view here is supported by Wilson's comments in Schoolfield's
office where he made various equivocal comments about parts of the motion, but
took refuge in lapse of memory when interrogated about important allegations, such
as Braswell's alleged determination never to sign a contract It is my view that Wilson
was cleverly negotiating with Johnson and was not prepared to characterize his state-
ment as false in the absence of a firm agreement about employment.24
I also find that Wilson told Johnson that he was not concerned about giving a con-
tradictory statement to the Board, but was concerned about a criminal action for
perjury. I find, moreover, that both sides avoided the words "false" or "lies" and
took refuge in the euphuistic phrase "false impression" in their discussions. Johnson
told Wilson "he would have to clean up the false impression [he] had left with the
Labor Board" before he could be offered employment. This obviously meant signing
a statement revoking, altering, or explaining Wilson's first statement, but Wilson had
no written agreement for employment, and perjury prosecution was a real threat. He
made one more attempt to be reemployed by telephoning Johnson the next morning to
ask for the Los Angeles terminal manager job, but Johnson turned him down.
Johnson had suggested that if Wilson was concerned about a criminal action result-
ing from a change in affidavits he should see a lawyer. Johnson mentioned the names
of company counsel to Wilson, and a few days later Wilson appeared in Allen School-
field's office. It is conceded that Wilson's statement, possibly perjury charges, and
subpena enforcement, were discussed, at least on a hypothetical basis,2° but about
everything else is in dispute. My reconstruction of the meeting is, and I find, as
follows
It fits with the other facts in the case that Wilson said he wanted to make peace
with Braswell when he appeared in Schoolfield's office and that he told Smith during
the day that he was "mad" at Braswell when he gave a statement to the Board but
wished he were out of the "whole mess " If Wilson's trip to El Paso and conversa-
tions with Johnson do not indicate an attempt by Wilson to rejoin Braswell and
extricate himself from something else, then language and actions are meaningless. I
also credit Schoolfield and Smith over Wilson generally, but with certain exceptions
to be noted. I find that they defensively tended to exaggerate some of Wilson's com-
ments about his statement. I explain this on the ground that they were not playing a
noble role in discussing, as Respondents' counsel, a "modified statement" with a
Government witness, and sought to find more damaging admissions than Wilson
actually made about his prior statement. I also find that the meetings were not as
detailed nor as long as they described them. On the other hand, there is no question
if my mind but that Schoolfield seized upon the opportunity, and, indeed, was pre-
pared to question Wilson in detail about his statement 26 I find that there was sub-
24 But, by the same token of course, Johnson's task was to get something in writing
from Wilson first.
25 Wilson denied in rebuttal that he had even told the two lawyers that he had signed
an affidavit but he admitted that he went to see Schoolfield because Johnson had suggested
seeing him for advice about his affidavit He admits to a discussion with Schoolfield as
a "friend," on a hypothetical basis, however, about signing contradictory affidavits
21 Schoolfield's indicated surprise at Wilson's arrival in the first part of his testimony
was feigned. He had been in touch with Johnson, and, in view of the importance of the
subject, I am sure, and so find, was made aware of the Wilson-Johnson conversations.
BRASWELL MOTOR FREIGHT LINES, INC., ETC. 131
stantial amount of conversation and questioning of Wilson about the General Coun-
sel's motion, as testified to by Schoolfield and Smith, and that although Wilson, as he
had with Johnson, made comments indicating possible explanations of, or weaknesses
in, the grounds asserted in the motion, never bluntly said that anything of real
importance he had told the Board was false, but stated, when crucial points were
reached, that he would have to see his statement before he could answer. I find spe-
cifically, in addition, that Wilson did not deny that premium pay was eliminated as a
device to cause a strike or state that he did not tell the Board that he had instructions
not to negotiate an agreement. Smith did not corroborate Schoolfield here, and, in
my view, Wilson was avoiding direct answers at the time. I find, on the other hand,
as testified by Smith and Schoolfield, that Wilson said his statement was misleading
and incomplete, and indicated that it could be changed easily by the addition of cer-
tain words. I find, in addition, that during the meeting Wilson continued to show
interest in reemployment with Braswell and asked Schoolfield to telephone Braswell
to find out if Wilson were going back to work. Such expressed interest in reemploy-
ment in the context of detailed discussions about the motion to reopen, perjury, and
"modified statements," coupled with evasive responses to Schoolfield's interrogation
about the motion, can indicate nothing else but an open mind on Wilson's part with
respect to the permanency of his recollection about important events and seriously
impairs Wilson's credibility as a witness.
I credit Wilson over James Bunch, however, in essential details. Bunch impressed
me as an unreliable witness, and he was also at all times reporting his conversations
with Wilson and others to Company officials and attorneys. In my opinion, Bunch
was a company agent assigned to cover Wilson and also union representatives to get
evidence against them and particularly to find out if he would be offered a price
for evidence. He admitted that he went to see Attorney Wells to see if he could get
a "pay-off," and that Company officials knew it. He candidly admitted, however, that
Wells told him that the Union was not buying testimony. I find that his testimony is
a fabrication and that in all probability he did not try to involve Wells in his testimony
because he learned Wells had a tape recording of their conversation 27
D. Respondents' evidence on the merits
Although I have found in Wilson's activities, from the date of his resignation to
the hearing herein, certain factors which I have concluded raise serious doubts about
his credibility and cause me to view his entire testimony with suspicion, Wilson is
not necessarily discredited totally if, for example, he is corroborated by other credible
witnesses, by facts in the collective-bargaining history in the record, including the
evidence in the prior case, or if, indeed, I should find Respondents' witnesses to be
wholly unbelievable. Respondents' witnesses contradicted Wilson's testimony on the
merits in all important respects.
J. V. Braswell owns 99 89 percent of the stock of Braswell Motor Freight which
owns all of the stock of Braswell Freight Lines. J. V. Braswell is the final authority
on labor matters for both Companies and actively manages both 28
Braswell testified that he was in Shreveport in the summer of 1957 and met with
Cloer and Hollenshead, former managers of D. C. Hall which he had just absorbed.
He said there was a conversation about payoffs to State and union officials with
Cloer and Hollenshead who indicated that the line could operate successfully only by
continuing such practices. He said he told the men that he would not operate under
such conditions, but he denied the Union was mentioned in any other way In sum,
Braswell denied Cloer and Hollenshead's testimony about the Shreveport conversation
and "fighting the union." Cloer and Hollenshead had visited El Paso in the fall of
that year to see Braswell. Braswell also denied that he there told the men he did not
intend to operate the line in the future under a union contract or made any other
27 Although unrelated to Wilson's credibility directly, I also discredit the testimony of
Robert E. Jones, a Braswell Freight salesman, who testified that Don Capshaw, assistant
business representative of Teamster Local 886, arranged a meeting with him and offered
him employment and $20,000 to testify against Respondents Jones also stated that, in
a later meeting with Capshaw and Union Attorney Wells, Wells told him that the Union
was not offering money or jobs for testimony but Implied that aid in securing employ-
ment would be given Jones if he cooperated I credit Wells' testimony that no promise
of employment or thing of value was offered Jones Jones, like Bunch, went to his meet-
ings with Capshaw and Wells with Company knowledge and approval He was delib-
erately attempting to entrap the two into an offer of money He impressed me as an
emotional , imaginative , and unsuccessful amateur in the game he was playing Capshaw
credibly denied the material portions of Jones' testimony.
- 141 NLRB 1154, I.R., section III, B
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
antiunion remarks indicating an attitude toward future bargaining.29 Braswell
admitted to a conversation with Hollenshead in 1960 but denied that he said he never
intended to operate under a union agreement again or that he intended to keep
operating if the Teamsters struck him because that was the only way to win. He said
he told Hollenshead that he had withdrawn from the Operators Association and that
he might have told him that he was not going to sign the same contract the Company
was operating under at that time because he needed economic relief.
Wilson had testified that Braswell criticized station managers in 1957 because
they would not "fight the union," but Braswell denied this. He said all his criticisms
were directed to operating errors and defects.
Braswell denied that he told Wilson in 1957 that he had "inherited" the existing
labor agreement from D. C. Hall and there would be no more agreements when it
expired. Braswell said his only conversations about the contract were instructions
to his managers to live up to it and demand the same from the Union. He flatly
denied telling Wilson that he would not sign another contract with the Teamsters.
Braswell testified that individual tariffs filed in 1960 with the commission were filed
solely for competitive reasons and had nothing to do with plans for a strike involving
the Union.
When Braswell transferred Wilson to the Dallas terminal in 1960 he told him that
Dunn, the employee he was to succeed, was not doing his job and did not discuss
"fighting the union ," according to Braswell. With respect to Wilson's testimony about
a quota of "warning letters," he said there was no quota but that he talked with all
managers and instructed them to issue warning letters to employees in order to
improve efficiency.
Braswell testified that he discussed withdrawing from the Southwest Operators
Association with Wilson in 1960 and his intentions to bargain "individually" with the
Union. He said that he thought the Association was not "fair" because it bargained
for the whole group of carriers and he did not like the grievance procedure where
his competitors and Union officials sat on panels.
Braswell denied, as testified by Wilson, that he discussed his plans involving the
Union with Wilson frequently as the labor contract drew to an end in 1960. He
denied telling Wilson that he was not going to sign a contract with the Teamsters and
that he would be struck, but that he would make plans to meet that strike. He said
he advised all his terminal managers that he did not want them to quit him in the
event of a strike, because he intended to try to operate even if picketed. Braswell
stated that during that period he had determined that the Company could not operate
under the Teamsters' agreement because it would bankrupt the Company He said
he expected a strike any time after February 1, 1961, the expiration of the agreement.
He discussed the difficulty of operating economically under the agreement with
Wilson and all terminal managers, he said.
Braswell withdiew from the Association in the fall of 1960 and retained Attorney
Schoolfield in November 1960. He visited Schoolfield's office alone and discussed
bargaining with the Union on an individual basis in order to get economic relief He
said Schoolfield advised him that he did not think Braswell would be able to get an
agreement different from that negotiated by the Association and the Southern Con-
ference and that a strike would occur. The filing of petitions for a Board election
was discussed and Schoolfield told Braswell he was entitled to a vote if he had a doubt
that the employees wanted the Union. In this meeting, Braswell told Schoolfield
what were the "main" things he wanted to get in a new contract. They were: a new
grievance procedure with arbitration, elimination of overtime, 24-hour layover period,
and continuation of the existing wage scale. Schoolfield told him that the Union
would strike the Company, as it had a right to, and he had no chance of getting
economic relief. Schoolfield was to check the Board to find out if there had been
elections and certifications on the Company' s line, and a possible meeting of super-
visors was discussed in order to advise them of their rights and responsibilities in a
"labor situation." Braswell denied that he made or discussed strike plans with
Wilson during this period or discussed such details as the cost of a strike, as testified
by Wilson.
About 2 weeks after the above discussion with Schoolfield, a supervisors' meeting
was held in Schoolfield's office. Braswell introduced Schoolfield, told the gathering
that there would probably be an election and turned the meeting over to Schoolfield
for instructions. Schoolfield spoke and also issued a memorandum of instructions.
21II. J. Jones, secretary of Respondents, said he sat in on the meeting with Cloer and
Hollenshead but was not present at all times. He remembered a discussion of payoffs
to State officials but not to union representatives
BRASWELL MOTOR FREIGHT LINES, INC., ETC. 133
Braswell denied that the election petitions filed in December 1960 were filed only
for delay. He admitted that Wilson advised him that the Company could not win an
election , but said he thought it could. He denied that he told Schoolfield in Wilson's
presence that he knew the Company could win an election and also said he did not
tell Wilson that filing petitions would "stir the union up." The factor of delay did not
enter into their discussions , he said, but there existed an honest difference of opinion
about how an election would turn out. When the petitions were withdrawn, it was
done on advice from Johnson that the election would be lost . Johnson based his
opinion on discussions with terminal managers , including Wilson . The instructions
to Schoolfield to withdraw were delivered over the telephone and not in Schoolfield's
office, as Wilson testified , and Braswell said he did not tell Schoolfield to withdraw the
petitions since they had "served their purpose "
With respect to Wilson's testimony about secret instructions as a negotiator, Bras-
well denied it all. He picked Wilson and Skidmore to assist Schoolfield , he said,
because Schoolfield wanted some one with knowledge of operations . He flatly denied
that he told Wilson that his job was to keep Schoolfield from negotiating a contract.
His only instructions to Wilson were to act as adviser to Schoolfield , according to him,
and he did not tell Wilson that if it appeared that Schoolfield was coming to an agree-
ment with the Union he should "block it with some argument on an operational..."
level.
Wilson had testified at length about the Company 's bargaining proposals in support
of General Counsel 's theory that they were knowingly unacceptable to the Union and
prepared in bad faith in order to precipitate a strike. Braswell testified on this subject
as follows : He said Schoolfield gave him the Union 's first proposal and he returned
it to Schoolfield with notations after a 3-day study. Schoolfield commented that he
knew he had been working because Braswell had deleted "seventy percent of eighty
percent of the proposals...." He said Schoolfield stated that he would take the
document and prepare counterproposals to the Union . He said he did not remember,
but did not think, that Schoolfield said, as Wilson had testified , that Braswell had left
nothing in the proposal that the Union could agree to.
Braswell testified that there was nothing in the various Company proposals that
would result in a saving or benefit to the Company , and that they were not drafted
with any intention that the Union could never accept them . He said , however, that
he did not expect to get all he asked for.
The February 5, 1962, Company proposal contained a 10-cent-an -hour wage offer,
and Wilson had testified that it was merely a screen to cover a possible unfair labor
practice in the elimination of premium pay. Braswell said he made the proposal
hoping to get an agreement and that the suggestions and decision to make the offer
was his own . He denied that Wilson and Schoolfield had to argue him into it, as
Wilson testified , or that he reluctantly agreed stating that they would get him a "con-
tract yet ." He also denied that the Company proposal of August 7, 1962, which was
presented during the strike, was offered to the Union only in order to obstruct agree-
ment because Braswell had heard that the Union was ready to accept anything the
Company offered.
In regard to specific Company proposals which Wilson had said were inserted in
order to create an impasse and start a strike, Braswell said that he wanted a new
grievance procedure, that the proposal was inserted in good faith , and that he did not
tell Wilson that the Union could not accept it because it would cost $5,000 a griev-
ance.30 Premium pay , about which a lot was heard in this and the earlier hearing,
was abolished because the Company needed to financially and because a competitor
did not pay it, Braswell said , and not to precipitate a strike, as Wilson testified. Con-
trary to Wilson , no poll of employees was taken in 1962 before the cut became effec-
tive, he said . Similarly, in regard to the reduction of the starting rate of $2 per hour,
also litigated in the earlier hearing, he said the cut was made in the pay period of
July 30 or August 1, but that Schoolfield had been consulted before the cut was made
and his advice was followed . Robert Daring was sent around in the latter part of
July to tell the terminal managers about it.
As reflecting on the good faith of the Company's February 5, 1962, offer of 10
cents per hour , employee Marcus Bryant had testified that Braswell told him the
Union was not supposed " to go" for the offer because it was put forth merely as
evidence of good faith . Braswell testified that Bryant merely asked him if the Union
would agree to the proposal and he said he did not know. He denied that he said
the offer was drawn with the thought that the Union could not agree to it and that
it was "outrageous in every way."
30 Braswell denied that the existing grievance procedure was unfairly utilized to force
a strike as Wilson had intimated . Lane Johnson testified in detail about this.
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Braswell agreed that he was at the New Orleans terminal on the day of the strike
but he denied that he had made any statement that he would not sign a contract. He
said he had no conversations with Davis, Henniger, and Hawkins, witnesses for
General Counsel, and very little talk with Zahn, the terminal manager, because freight
was backed up by the strike and the supervisors were trying to move it.
Braswell said that Wilson resigned shortly after they discussed the problem of the
pregnant employee. He said that Wilson was very upset about rumors and threatened
to kill anyone who gossiped about him.
Finally about Wilson, Braswell testified that he received a telephone call from
Schoolfield in August 1963 while he was in Oklahoma City, and that Schoolfield told
him that Wilson had been in and wanted to go back to work, but he wanted a 5-year
contract at $700 a month. Braswell said he told Schoolfield that he would not buy
Wilson a cup of coffee to keep him off the stand in a National Labor Relations Board
hearing and that he meant it.
Lane Johnson, Respondent's traffic manager whose testimony about Wilson's visit
to El Paso and discussion of reemployment has been already considered, testified that
he was present during the meeting Cloer and Hollenshead had with Braswell when
they visited El Paso in 1957, after Braswell had taken over D C. Hall. He corrobo-
rated Braswell's story that the two men stated that payoffs were necessary for a suc-
cessful operation. Cloer also stated that the handling of grievances under the Asso-
ciation contract was "rigged," and Braswell said if that was the case the Company
ought to consider getting a new grievance procedure. He denied that Braswell said
he did not intend to sign another contract with the Union.
Johnson played a substantial role in general operations and labor matters for
Respondents when he was not occupied with Interstate Commerce Commission mat-
ters, and he described some of his activities in those fields in 1957, 1958, 1959, and
1960 By 1960 Johnson had become responsible for ultimate decisions and grievance
handling. From 1957 to the fall of 1960, when Braswell withdrew from the South-
west Operators Association, he said the Company followed and was bound by the
Association's interpretation of the labor contract. He said instructions were issued
by Braswell after D. C. Hall was purchased directing all terminal managers to live
up to the Union agreement. During the period in which Johnson was responsible for
grievance handling, about 150 grievances were processed, but there were only 5 in
which the Company refused to abide by the recommendation of the joint board, and
Johnson named and described the substance and history of the 5. He denied that
there was any scheme to rid the Company of a union by its method of handling
grievances or that the Company was attempting to cause a strike.
Johnson described his efforts to tighten and improve the operations of the newly
acquired Company for which Braswell had made him responsible. As part of his
program he issued many bulletins to terminal managers urging increased efficiency.
Many of these bulletins complained forcefully of the derelictions of terminal man-
agers as well as ordinary employees. He told the managers to issue warning letters
to employees and to discipline them but said his purpose was solely to improve oper-
ations and not to "fight the union," as Wilson testified.
Johnson participated in the decision to withdraw the election petitions in January
1961. He said that during a recess in an ICC hearing he had talked with many ter-
minal managers who told him that the Company could not win an election. Johnson
talked with Schoolfield on the telephone about the matter and then had a conference
with Braswell He recommended the withdrawal to Braswell, who resisted, but
finally agreed. Johnson's argument to Braswell was Schoolfield's suggestion that it
was bad strategy in bargaining to go to the table with a lost election at their back 31
Braswell had Johnson telephone Schoolfield and authorize the withdrawal of the
petitions.
As bearing on Braswell's state of mind in bargaining, Johnson testified that Bras-
well often told him that the Company had to have a contract ". . . that he could make
money on...." He recalled an example of a Braswell comment which he said was
made before the strike. According to him, Braswell, who opens all the Company
mail in El Paso and hands it to department heads, handed Johnson some mail and
said, elatedly, "It sure looks like those boys down there are going to get me a
contract " 32
"An added reason for withdrawal, according to Johnson, was the expense and con-
fusion an election entailed
31 Secretary H J. Jones also testified to a similar remark by Braswell under identical
circumstances He was extremely vague about details
BRASWELL MOTOR FREIGHT LINES, INC., ETC. 135
As set forth above, Johnson recounted in detail his experiences and conversations
with Wilson after Wilson left the Company. He did not mention his meeting with
Wilson and discussion of Wilson's testimony on the eve of this reopened hearing,
however, but then, neither did Wilson mention it when he first testified as a witness
for General Counsel.
Attorney Schoolfield testified that he was retained by Braswell in November 1960
after Braswell had withdrawn from the Association. He said Braswell told him in
their first meeting that he needed economic relief and wanted to bargain for a sepa-
rate contract with the Teamsters. Schoolfield told him that the possibility of relief
from the Association contract was remote. Petitions for election were discussed,
but no final decision was made about filing. Schoolfield suggested a supervisors'
meeting in order to explain the ". . . rules of the Labor Act to them ..." so that if
the Company ". . . got into a bargaining situation ... foolish errors .. " in misstate-
ments of fact by supervision could be avoided. The possibility of a strike was also dis-
cussed. The supervisors' meeting was subsequently held and Schoolfield spoke and
distributed a memorandum of instructions.
In early December 1960, Braswell and Wilson visited Schoolfield's office to discuss
filing election petitions. Wilson expressed an opinion that the Union was strong, but
Braswell made little comment, according to Schoolfield Within a few days Braswell
telephoned Schoolfield and instructed him to file election petitions. Braswell told
Schoolfield that the terminal managers and employees had indicated to him that the
Union might not represent a majority and he felt that the employees deserved a vote.
Schoolfield said there was no discussion at any time about filing petitions merely
for delay.
The petitions were filed and later withdrawn on the basis of his advice and John-
son's recommendations to Braswell. He and Johnson thought the Union was not as
unrepresentative as Braswell had indicated, and he did not want a strong union vote
at his back in bargaining. The petitions were withdrawn in early January 1961, the
day before the Board hearing on the cases. Schoolfield said he did not see Braswell
from early December to near the end of January after the petitions were withdrawn.
Schoolfield denied that he commented to Braswell, after receiving from him the
first union proposals which he had marked up, that the Union could not possibly
agree. He admitted that he did say, "My God, you've made a lot of comments" or
"you've cut them up."
In regard to the Company's basic position in negotiations, Schoolfield said he had
been made fully aware by Braswell in November 1960 what the Company wanted.
He said the wage scale was the most important issue but that the Company also
wanted an independent arbitration procedure, relief from overtime, and improvement
in layover time. He said that he looked to Braswell for authority and instructions
in bargaining and that Wilson and Skidmore were merely helpful advisors. He knew
of no bargaining sessions where Wilson "blocked an agreement" or any instructions
to Wilson to that effect.33
In regard to Company proposals generally, Schoolfield stated that they were not
drafted in such a way that the Union could not accept them but on a "give and take"
basis He testified that both sides made concessions and the Company agreed to
certain paragraphs in the Union's proposals. With respect to specific issues, he testi-
fied that the "crux" was the wage scale, that the Company could not meet the Union's
scale and the parties "hung" on that issue all throughout negotiations. He testified
that the Union did offer independent arbitration but he knew he could get that all
along The Union would not, however, agree to continue the old wage scale, or agree
to elimination of time and one-half for overtime. He said the Union indicated that
it would grant relief on layover time, but no specific relief was ever agreed upon.
Schoolfield went through paragraphs of Company proposals and gave Company
positions about the need for them. One proposal related to health and welfare pay-
ments. The Company proposed to make the contribution directly to the employees
rather than the fund. Schoolfield said there was no serious intention of ever making
the payments to the employees but the proposal was a ". . . kind of a little shock
thing ...." The Company also proposed to eliminate the checkoff, but Schoolfield
said if the Company got agreement on wages it would have continued the checkoff.
33 J B Skidmore, the third member of the team, said he had no seciet instructions and
did not hear Wilson get any from Braswell. Wilson did not say Skidmore was present,
however Skidmore remembered that Schoolfield said that Braswell had cut the Union's
proposals to pieces when he returned them to Schoolfield, but could remember no other
remark. Skidmore attended only a few bargaining sessions and appears to have been an
unimportant member He was vague about the various proposals and their meaning
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He said the Company made four sets of proposals up to August 7, 1962, and they
were not completely unreasonable, as described by Wilson. He described the pro-
posals as "company benefit proposals, things the company would have liked to have
had and the company needed ...... They were not formed with any idea, he said,
that the Union could not possibly accept them. The proposals did not get "pro-
gressively worse" as Wilson testified, but, according to Schoolfield, "they pretty well
remained the same because of the constant stick on the wage scale." The offer of
10 cents, however, was an attempt by Braswell to get an agreement but was unsuc-
cessful. He said he recalled no statement by Braswell like, ". . . you guys are going to
get me a contract yet ...," but said he would have understood such a remark to be
encouragement not a dare.
Schoolfield said that the Company's last proposal of August 7, 1962, was drafted
as a final proposal, but he was prepared to make concessions if the Company could
make a deal on wages, but wages continued to be the problem.
Schoolfield denied Wilson's testimony about attempting to create an impasse in
the June 27, 1962, meeting so that bargaining could be broken off. It just did not
happen he said.
Regarding premium pay and a poll assertedly taken before its elimination, he said
the poll was in 1961 and it was stopped when the Union complained. He knew of
no poll in 1962. Overtime was stopped, not in order to get the Union to strike as
Wilson testified, but because the subject had been pending a long time. After dis-
cussion with the Union and rejection of the Union's proposed solution, it was
eliminated.34
The starting rate was cut to $2 an hour after Braswell asked Schoolfield about it
and after discussion with the Union, according to Schoolfield. He knew nothing
about Wilson telling employees that the wage cut would be instituted and then
rescinding the order in order to give Schoolfield an opportunity to inform the Union
about it, as Wilson had testified 35 Finally, about Braswell's mental state in bargain-
ing, Schoolfield said his firm instructions were to get a contract, and he never had
the feeling that Braswell did not want an agreement with the Union. He had no
recollection of having expressed a contrary sentiment to Wilson, as Wilson testified.
Under cross-examination Schoolfield was referred to his instructions to Company
supervisors issued at the supervisors' meeting before the petitions were filed which
contain, among many other directions, a warning that the supervisors could not tell
employees that the Company would not sign a contract. Schoolfield said he advised
all his clients not to say that.
Schoolfield also stated that he never informed the Union that the Company needed
relief in only four major areas, or make the Union an offer to retreat on other pro-
posals in order to secure those main objectives. He did not do so because he never
obtained an agreement from the Union on economic matters.
About the cut to $2 per hour in the starting rate, Schoolfield, under cross-examina-
tion, repeated his earlier position that the merit increase proposal in the Company's
final offer had nothing to do with the cut he had advised the Union about in July
1962 but was a separate subject. He said, in effect however, that the principle of
merit increase was contained in the Company's first proposal in February 1961. He
admitted that the Company presented the August 7, 1962, "final offer" in the hope
of coming to an end of "this back and forth situation." 36
In the main, the rest of Respondents' case was a denial or explanation of remarks
attributed to Braswell, or his agents, indicating Braswell's intentions toward the
Union. Hawkins, Davis, and Henniger had testified about Henry Zahn who was ter-
minal manager in New Orleans at the time of the strike. Zahn said the only instruc-
tions Braswell gave him that day were to move the freight and to hire replacements
to do it. Zahn said he did not observe Braswell in conference with any supervisors.
34 See 141 NLRB 1154, I.R., section III, C, 4.
s-, This subject is treated in 141 NLRB 1154, I.R., section III, C, 6.
as Attorney Hugh Smith, Schoolfleld's associate, testified that he was in a meeting with
Braswell, Schoolfield, and Wilson on July 26, 1962, during which Braswell asked if he
could put the cut to $2 in on August 1 as planned Schoolfield and Wilson said he could
because it had been offered to the Union. Schoolfield, after Braswell said he did not want
to keep the men at that rate, suggested that they be raised later on a merit basis Smith
also said that the "final offer" of August 7, 1962, was discussed in that meeting. The
offer was made because it was agreed that the parties appeared to be deadlocked and
Braswell was concerned about the extended negotiations He denied that it was made
because it was suggested by Braswell as a device to keep the Union from agreeing to any-
thing the Company might offer, as Wilson testified.
BRASWELL MOTOR FREIGHT LINES, INC., ETC. 137
He denied that he had told supervisors that Braswell would not sign a contract, or
had discussed Braswell's attitude toward the Union in any way with them. He said
the only matter he recalled in that field was that "Braswell wouldn ' t sign a contract
that would break him ." Zahn stated that he had discussed Braswell's labor situation
with Braswell but he had never heard Braswell indicate a fixed intent never to sign
with the Teamsters Braswell said , according to the witness , that he was willing to
sign a contract he could "live with." 37
Robert Daring, whose testimony about Wilson had been considered earlier and
credited , said he had been in discussions with Braswell and Wilson after Braswell
acquired D. C. Hall Company and never heard Braswell say that he had inherited
a labor contract but there would be no more after it expired.
Regarding remarks Braswell was supposed to have made about his terminal man-
agers not "fighting the union ," Daring said he had heard Braswell criticize Tomlin,
Hildebrand , and Dunn, all mentioned in Wilson 's testimony , for inefficiency. Bras-
well's comments about Dunn , who Wilson replaced , all related to operational matters,
and he never heard Braswell say that Dunn was "weak " in not fighting the Union.38
Van McQueen has been terminal manager since August 1, 1962 , at Memphis.39
He stated that employees "might" ask him, on occasion , if he thought the Company
would sign a contract and his reply would be that the Company could not sign a
contract that would break it. He denied that he said, as Hatley testified , the replace-
ments should not worry about their jobs because Braswell would not sign with the
Union.
W. C. Smith preceded McQueen as terminal manager at Memphis . He said when
he hired replacements during the strike he told them their jobs were permanent
"unless there was some order of some court ... further up the road." He said he
made no comments about Braswell signing a contract.40
James Bunch testified that he interviewed the former Shayler drivers when Bras-
well absorbed the line in March 1963 and admitted that he told the men there was
no union contract in existence . He said he told the men they would be hired as new
employees with no seniority . He agreed that he told the men that the operation
would be nonunion but denied that he said that it would be run that way even if he
and Braswell had to drive the trucks themselves 41
E. Analysis of the evidence on the merits , findings and conclusions
A review of the record made here and in the earlier hearing shows that much of
Wilson's testimony is not corroborated by circumstances and events surrounding
Respondents ' labor relations and bargaining.
Wilson testified that he "fought the union " when he was terminal manager by
issuing warning letters on every possible occasion, and by firing union employees.
He said a quota of warning letters was imposed upon him and other terminal man-
agers by Respondents by teletype . The record in the first hearing discloses that there
were only 2 or 3 drivers , 1 mechanic , 5 office employees , and 26 dock and city drivers
employed at the Dallas terminal at the time of the strike , but Wilson also testified
37 Zahn also testified that there was no poll of employees on his dock in 1962 before
premium pay was abolished. Logan, terminal manager at Shreveport , and Grimes, dock
foreman under Wilson at Dallas, also testified that no poll of employees occurred before
the elimination of overtime in 1962
33 Daring also testified to a trip he made around the Company's system announcing the
cut of the starting rate to $2 It happened at the end of July or early August he said
Employees Williams and North said Wilson told them about the cut at the end of July
but later rescinded it as to them and a few others because they had worked for the Com-
pany before Terminal Manager Downing said the cut was around August 1, 1962, and
that Daring telephoned him about it. He was not told to make a cut and later told to
rescind it
3D He fixed the wage cut to $2 at his dock as the day after he took over ; namely,
August 2, 1962.
40 Smith said there was no early announcement of the cut to $2 before it was put into
effect. Also, contrary to Wilson , he said they had no "quota" of warning letters to meet
41 Leo Sokoloski , a former Shayler driver , was interviewed by Bunch , and Bray and
Stevenson were present . He said Bunch told them it would be a nonunion operation and
the men would have no seniority. He recalled no statements such as Bray and Steven-
son testified to, but he said he was a little late for the interview . He added that Bunch
said he did not know what the operation would be in the future William Church, a
company salesman , said he was present at the Bunch interview but he was in and out of
the office during them His testimony was substantially the same as Sokoloski's
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondents could not win an election at the Dallas terminal . His testimony
about "fighting the union ' 'was broad , vague, and overstated in my view . If he had
replaced and discharged employees in such relatively small bargaining units and
hired nonunion persons, as he stated , his opinion would have been different about the
results of an election In addition , no other terminal manager testified about a
"quota" of warning letters , no teletype was ever found , and there is no evidence in
the record to support Wilson on this point other than his own testimony . Braswell
and Johnson testified that there was no "quota" of warning letters and explained the
issuance of warnings as motivated by a desire to improve efficiency . I credit their
testimony . Wilson 's testimony about Braswell criticizing other terminal managers
because they did not "fight the union " is also uncorroborated , and Braswell 's denials,
supported by Lane Johnson 's detailed description of his efforts to improve the opera-
tions of the terminal managers and the system , lead me to credit Braswell as against
Wilson here 42
Wilson 's account of Braswell 's alleged sabotage of the grievance procedure is not
borne out by the record . Johnson testified without contradiction that the Company
refused to abide by a joint board award in 5 cases out of a total of 150 in a period
of about 3 years, and he analyzed each one. No one can say on the basis of the
statistical record of grievances handled, and Johnson's explanation of the cases in
which the recommendations of the joint board were ignored, that the Company's
position was taken in bad faith . Wilson's testimony , therefore, that Respondents'
handling of grievances was designed to provoke a strike automatically falls, and I
credit the testimony of Respondents ' witnesses that it was not.
Premium pay for overtime was eliminated by Respondents on March 26, 1962,
and Wilson testified that this was another example of an act designed to precipitate
a strike . Wilson 's account of the circumstances surrounding the Company 's act is
inaccurate , and the record does not otherwise support his testimony. In the first
place, Wilson was in error in his testimony about a poll of employees taken just before
premium pay was abolished The poll was taken in 1961 , not 1962. Schoolfield
advised the Union at the time that it would not happen again and cicrulated a memo-
randum to terminal managers on the subject in April 196143 All other witnesses
who testified about a poll said there was none in 1962. In addition , the record in
the earlier hearing demonstrates that the subject of the elimination of overtime had
been on the bargaining table for a year before the Company took action. If the
Company had a plan to start a strike by such action it waited unnecessarily long to
do it. I do not credit Wilson's testimony on this subject
There is no corroboration of any kind in the record to support Wilson 's testimony
that he and Schoolfield tried to reach an impasse in a bargaining meeting on June 29,
1962, but were unsuccessful only because Attorney Wells prevented it His testimony,
in addition , seems inconsistent on its face in the suggestion that the Company agreed
to all the Union 's demands ". . . right down the list ...," because this does not jibe
with the fact that the parties were still in disagreement on a number of important
items on August 7, 1962 Moreover , the first record shows that layover time was
supposed to have been agreed to on July 9, 1962 , and revoked later , and that issue
was thoroughly litigated 44 If layover time had been disposed of earlier, as Wilson
suggested , it would have been mentioned in that hearing . Finally, Schoolfield testi-
fied in the first hearing that Attorney Wells was not present at the June 29 meeting
and no one contradicted him. I find that the attempt to create an impasse on June 29,
1962 , as detailed in depth by Wilson, but denied by Schoolfield , did not happen.
There is nothing in the record in addition to Wilson's testimony to support his story,
which to me appears implausible on its face , that Braswell discussed his strike plans
in detail with Wilson and had two plans, one, to shut down completely in case of a
strike , and the other , to operate on a very limited basis On the contrary , these plans
are inconsistent , in my view, with what Wilson said Braswell told him on other occa-
sions , and, indeed , inconsistent with what Braswell did Wilson testified, for exam-
ple, that Braswell had told him on many occasions that the way to defeat the Union
was to have a strike and have the replacements vote the Union out. Obviously
42 See Respondents ' Exhibits Nos 16, 17, 18 , 19, 20 , and 22 as written corroboration of
Braswell and Johnson It is also well known in the administration of the Act , as well
as in arbitration , that the absence of warnings makes a discharge appear suspect and
unreasonable
43 General Counsel ' s Exhibit No. 10h ; I R, section III, C, 4
44 1 R , section III, C, 8
BRASWELL MOTOR FREIGHT LINES, INC., ETC. 139
replacements cannot vote if there are none. A plan to shut down is also inconsistent
with the filing of National Labor Relations Board petitions for elections and with
Respondents ' oral and written advice to its supervisors in the event of a labor dispute.
Schoolfield 's memorandum to supervisors of November 1960 talks about "replace-
ments" and states that the Company plans to operate as long as it can.45
Of major importance in the case was Wilson 's evidence that Braswell privately
instructed him to prevent Schoolfield from negotiating an agreement and to block
one by "operational" arguments , if one appeared likely. Although I do not overlook
the possibility that the absence of any evidence that Wilson performed as directed
could be explained by the theory that Schoolfield was clever and adroit enough for
the task at hand , nevertheless the record does show Wilson to be relatively silent in
negotiations and demonstrating no obstructive tactics There were only about two
subjects and occasions on which Wilson expressed himself, and these were both prime
issues in the first hearing , and remains so here. The first of these was Schoolfield's
alleged offer of $3 an hour for all employees , regardless of job classification , and his
withdrawal of it after the Union accepted it . The evidence in the first case showed
Wilson stating that "we withdraw the offer." Schoolfield then explained that the
exchange was a mere byplay and not a serious offer.411 General Counsel suggests
that this was an example of Wilson blocking an agreement as instructed . Wilson
never even referred to the incident in this hearing , and the event described is not an
example of implemented instructions , therefore , but, to the contrary , Wilson's failure
to deny Schoolfield 's earlier testimony that he did not make the proposal seriously,
supports the earlier finding that there was no bad faith in the circumstances.
Similarly, with regard to layover time. In the first hearing this subject was litigated
at length as an example of the Company agreeing and then revoking its assent in bad
faith. Wilson was present during the bargaining sessions when this matter was dis-
cussed, but in this hearing he gave no positive indication that the matter of layover
time was finally agreed to or rescinded in bad faith by Schoolfield with his assistance,
even though layover time, an operational matter, was within his peculiar expertise.47
Braswell testified that he gave Wilson no secret instructions to prevent an agree-
ment but selected him as an advisor to Schoolfield . Schoolfield said he knew of no
private instructions . I credit them both, and find that there were none.
H. J. Jones, secretary and general traffic manager of both corporations , testified
in detail about Respondents filing tariffs . He testified that individual tariffs filed in
1961 and 1962 with the Interstate Commerce Commission were filed for competi-
tive reasons . Jones favorably impressed me as a witness . He was careful in his
testimony and did not seem to exaggerate . I find on the basis of his testimony, and
Braswell's corroboration , that the rates were filed for purely business reasons and
not, as Wilson indicated , as a part of an overall strike strategy 48
Neither do I believe Wilson 's testimony that the petitions for elections were filed
in December 1960 merely for the purpose of delaying bargaining with the Union or
to "confuse" it, and were withdrawn because the end had been accomplished. I
believe Johnson 's and Schoolfield 's testimony to the effect that the instructions to
withdraw the petitions were given to Schoolfield by telephone and that Wilson was
not even present . The record also shows that the petitions were withdrawn on Janu-
ary 3 , 1961, the day before the hearing on the petitions, but the Union was still in
negotiations with the Operators Association at that time . If Schoolfield wanted
delay it could have been obtained by letting the hearing proceed In addition , School-
field sent an elaborate memorandum of instructions and advice to terminal managers
after he filed the petitions which reads like and is consistent with serious processing
"Respondents ' Exhibit No 10, page 7; General Counsel's Exhibit No 28 Moreover,
liollenshead , a General Counsel witness , testified that Braswell told him in 1960 that the
only way to beat the Union in the event of a strike was to keep operating.
90 See I R, section III, C, 7
91 The Union 's suggestion in its brief that Wilson testified that there was agreement on
layover is based on Wilson ' s testimony about Respondents ' attempting to create an nn-
passe on June 29 , which I discredited above In addition , Wilson 's answer about "turn-
around " was unclear.
4"I do not credit Wilson 's testimony that he was told by Braswell , in June 1962, to
reduce the starting rate to $2 an hour and later told to iescind it so that Schoolfield
could bargain with the Union about it. Examination of the testimony of Daring , Downing,
Smith , and McQueen , as well as employees Williams and North , convinces me that the cut
took place in late July or eaily August, and that these was no previous announce-
inent of it.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the petitions.49 If Braswell was out to "confuse" the Union, as Wilson testified,
Schoolfield's memorandum to terminal managers about the possible elections would
have confused the Company's own supervision more, if it were only a trick. I do
not think it was. I also credit Schoolfield's testimony that he learned that Braswell
was too sanguine about success and recommended withdrawal to Johnson.
There remain for consideration two important subjects. First Respondents' bar-
gaining proposals and its treatment of the Union's, and second, Braswell's and his
agents' statements about his bargaining intentions. The evidence on these subjects,
separately and in combination, it is asserted, establish Braswell's intention never to
agree to any contract with the Union.
Wilson is not the only witness that testified that Braswell had a closed mind about
bargaining with the Union and hoped to rid himself of it. Cloer and Hollenshead,
former managers of D. C. Hall, the company which Braswell absorbed, testified
that Braswell told him in July 1957 that he intended to operate the acquired company
nonunion and not under a union contract, and that he repeated similar remarks in a
meeting in September 1957 in El Paso. Hollenshead also said Braswell reiterated
sometime in 1960 that he never intended to operate again under a union contract.
Braswell, as set forth earlier, denied these statements, but I credit Cloer and Hol-
lenshead and find that the conversations occurred substantially as related by them.
Respondents' attempt to relate the conversations to alleged shakedowns and payoffs
and deemphasize ordinary bargaining is a smoke screen, in my view. On the other
hand, the conversations occurred in a context of an anticipated reopening of the
Southwest Operators Association contract, and Cloer had asked Braswell if the
Association would continue to negotiate as the Company's representative Braswell
told Cloer that the Association would not represent Braswell. In addition, although
Cloer was positive about Braswell 's intention to operate "nonunion ," he was not so
precise as Hollenshead about Braswell 's intentions not to sign another "contract"
with the Teamsters. Nevertheless, as stated, I credit Cloer and Hollenshead gen-
erally. I am convinced that Braswell spoke more about his intentions regarding the
Union, at least before he retained Schoolfield, than he admitted on the stand. It
also cannot be overlooked that the first written reference to Braswell not signing a
contract appears in Schoolfield's instructions to supervisors issued in November
1960.50 In the document Schoolfield warns that the Company's agents may not tell
employees that Braswell will not sign a contract with the Union because such is a
threat and untrue. They can, however, he suggests, tell the employees that Bras-
well will not sign a contract that will bankrupt it.51 I do not think Schoolfield would
have warned about the "no contract" threat unless there had been some company
statements along that line, and I do not credit his statement that he gi\es all his cli-
ents a like warning whether they need it or not.
I also credit H. C. Hawkins and John Henniger, but only in part, about Braswell's
comments to them and Zahn on the New Orleans dock, on the morning of the
strike. I find that Braswell told Zahn, Hawkins, and Henniger to hire replacements
for the strikers and to guarantee them permanent employment because he was not
going to sign with the Union. I do not believe Hawkins' unlikely story, however,
that Braswell told him that he had "known for two years" that he was not going to
sign a contract, This alleged remark does not appear in Henniger's testimony who
was present at the time. It does appear in Davis' testimony, but I discredit him
entirely. Davis and Braswell visited the terminal during the first 2 weeks in May,
which would have been 10 or more days after Henniger and Hawkins said he was
there. Davis also said Braswell spent 3 or 4 days at the terminal, which is con-
trary to the testimony of others, and he was otherwise vague about dates and places.
Davis was discharged by Respondent for taking gifts from employees in considera-
tion for assigning them extra work.
I also credit Hawkins' and Henniger's testimony that Henry Zahn stated that
Braswell did not intend to sign a contract. It must be added that the witnesses were
not too certain of the dates of these utterances, and also understood them to mean
that Braswell would not sign the contract the "other carriers" were operating under.
"General Counsel's Exhibit No 26, see also Respondents ' Exhibit No 10
so Respondents ' Exhibit No 10, page 5.
si These are the "magic words" referred to in Johnson's testimony about his conversa-
tions with Wilson This also makes it evident to me that Wilson, as well as Johnson,
knew from the beginning what the "three or four" words were, because they were both
present at the Schoolfield meeting, and Wilson testified that Schoolfield made It clear
that the italicized statement could be made to employees.
BRASWELL MOTOR FREIGHT LINES, INC., ETC. 141
Marcus Bryant was a vague, elusive, and rambling witness. I find that most of
his testimony is unreliable. Bryant had gotten himself into Braswell's good graces
during his employment by engaging in a physical fight to resist unionization. On
occasion he would ask Braswell how the negotiations for a contract were coming
along. He testified that Braswell stated more than once that he was not going to
sign a contract. This testimony is practically destroyed, however, by Bryant's state-
ments under cross-examination that he understood Braswell to mean that he would
not sign the contract the other carriers were signing, and his admission that Braswell
said that he would sign the old agreement with "a few changes," but not, as Bryant
understood it, the Southwest Association contract I find that Braswell did have
conversations with Bryant about negotiating a contract and indicated extreme reluc-
tance to do so, but it is impossible to say from Bryant's testimony what specific words
Braswell used or what contract he was talking about.
I flatly reject Bryant's testimony, which Braswell denied, that Braswell told him
that the 10-cent offer of February 5, 1962, was in bad faith to cover an unfair labor
practice, that the contract offer was "outrageous" in every way, and that the Union
was not supposed to "go for it." Bryant stumbled over this testimony and appeared
far over his head in technical detail. I believe the evidence to be a contrived
attempted corroboration of Wilson on this same point by a friend of Wilson who
has a bias against Braswell.52
I credit Odell Hatley, a striker replacement, over W C. Smith and Van McQueen,
and find that they told him that the replacements need not worry about their jobs
because Braswell was not going to sign a contract. McQueen was evasive and
oblique in his testimony by suggesting that employees "might" ask his opinion at
times about what he thought the Company would do, but that he would merely reply
that the Company cannot sign a contract that would bankrupt it. Smith, who said
he told replacements their jobs were permanent but made no reference to Braswell
signing a contract, was extremely embarrassed by the cross-examination about the
circumstances of his rehire by Braswell. I do not believe he was a candid witness 53
I do not think that the testimony about former Shayler drivers' conversations with
Bunch when applying for work adds much to the case even if I credit them com-
pletely, and I do not. It is clear that Bunch made it clear to the men, and they
understood that there was no union contract on the line, and no one contends that
there was or is. Because Bunch, in March 1963, described the line as a nonunion
operation, and bragged that Braswell would get his trucks into Chicago if he and
Braswell had to drive them, does not establish, or significantly support, an inference
that Braswell never intended to sign a contract with the Union in the instant case.
In addition, although Stevenson said that Bunch told them that the line would not be
union in the future, this remark does not appear in Bray's testimony and he was
present at the interview. I find that Bunch did not say it.
On the other hand, I credit Wilson's testimony that Braswell told him in 1957 that
he had "inherited" the labor contract from D. C. Hall and that "there would be no
more" when it expired, and that Braswell also told Wilson, in the fall of 1958, that
he did not know when he purchased D. C. Hall that he had to assume the contract,
but that he would never sign another contract with the Teamsters. These remarks
are consistent with Braswell's statements to Cloer and Hollenshead made after he
took over D. C. Hall in 1957
It is not always easy to draw a line between hard bargaining and bad-faith bar-
gaining, and resort to matters apart from the negotiations or proposals themselves is
often necessary to determine intent. I have discredited Wilson in many material
respects in his testimony purporting to show an elaborate design by Braswell to
avoid a contract, precipitate a strike, replace the strikers, and free himself of the
Union after a year. My study of the Company's and Union's proposals and the
negotiations as found in the record also convinces me that, although they clearly
"I credit Charles Grimes' testimony that Bryant said he resigned because Wilson did,
indicated that be was going to give evidence to "get even with Braswell," and said he would
like to "whip" him Bryant is prone to use his fists and Grimes said he believed he
meant what he said and would assault anyone who be thought had done harm to Wilson
5" For impeachment purposes, B. A Robinson testified candidly and credibly in rebuttal
that he knew Smith for years and telephoned him in 1963 when Smith was working at
another company. To Robinson's Inquiry, Smith told him that Braswell had stated all
along that he was not going to sign a contract. When Robinson asked Smith to contact
a union official and tell him what he had just said, Smith said he did not want to get
involved.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
show hard bargaining , there is nothing in them as such to substantially support an
already discredited witness' testimony that the proposals were drawn and redrawn
so that the Union could never accept them.
Respondents ' first proposal seems harsh and contains clauses to which, probably,
no self-respecting union would agree, such as payment of welfare contributions
directly to employees rather than the fund, same scale, and elimination of checkoff.
But the Union 's proposal was the Southwest Operators Association agreement to
which Braswell admittedly would not agree because he wanted economic relief, and
his proposals were drawn to bring the Union down from the Association contract.
In addition , the Company came off its first proposal at a later date and patterned its
contract language after the language in the expired contract.54 Although the Com-
pany never abandoned its overtime proposal and finally eliminated overtime, it did
offer a wage increase of 10 cents an hour.5 5 Furthermore , I cannot say that the
Company's demand for independent arbitration was in bad faith, and , as a matter of
fact, the Union subsequently agreed to it, and also offered to eliminate overtime in
exchange for a wage increase ; yet these items, it is contended , were offered only
because Respondents knew they could not be accepted . Finally, Schoolfield testified,
without any real contradiction , that the "crux " of the problem was the wage scale
and that the parties "hung" on that throughout . He said the Company was willing
to make concessions in its last proposal if a "deal" could be made on wages. I credit
this testimony and his testimony generally about the preparation and offering of Com-
pany proposals . I conclude that the evidence offered does not support General
Counsel's theory that the proposals were offered in bad faith with the specific intent
of avoiding any agreement with the Union.
I have found that Braswell made statements indicating his desire to avoid a con-
tract with the Union , that certain of his agents stated that Braswell did not intend to
sign a contract , and that Braswell engaged in hard bargaining . General Counsel's
case, however, depends in the main on Wilson's testimony which I have discredited
in most respects . I do not think that the kind of bargaining Respondents pursued,
taken with remote statements of Braswell at the time he purchased the D C Hall
line, remarks by Braswell , or terminal managers , to replacements about permanent
employment at the commencement of the strike , or other similar remarks, can fill
the enormous gap left in General Counsel's whole theory of the case by my unwill-
ingness to rely on Wilson in any significant way for the reasons given . I conclude
that General Counsel has not established the allegations of the amended complaint
by a fair preponderance of the evidence and will recommend that the amended com-
plaint be dismissed in its entirety.
The Union and General Counsel have asked me to reconsider my finding in the
earlier case that Respondents did not engage in an unfair labor practice by refusing
to disclose the books of the parent company, and of J. V. Braswell personally on a
plea of poverty on behalf of the subsidiary , Braswell Freight Lines. These requests
are denied on the grounds that I do not consider that subject to have been properly
before me on the remand and also because nothing in the evidence has persuaded me
to change my view.
The Union , subsequent to closing the record in this reopened case, also filed a
motion and supplemental motion to reopen the record to take the testimony of Ray
Barker, and also the testimony of J. V . Braswell and V. E. Hensley , officers of
Respondents . It was proposed that Barker testify about Braswell 's expressed inten-
tions not to sign a contract , made in 1950, and other evidence indicating an anti-
union attitude . Braswell and Hensley would testify to statements they made in a
hearing before the Interstate Commerce Commission relative to Braswell Freight
Lines' financial position . These motions were opposed by Respondents , but General
Counsel filed no response.
The Union 's motions are hereby denied. In the first place, the evidence sought is
cumulative and would be of no significant help in reaching a decision . Secondly,
with respect to Barker, he was present at the hearing as a witness for General Coun-
sel and General Counsel chose not to use him in his case -in-chief but to save him for
possible rebuttal. I offered the Union a continuance to enforce a subpena for Barker
when he was unavailable at the close of the Union 's case, and refused to permit the
Union to rest "conditionally." The offer was refused and Respondents presented
their evidence . The Union 's motions, therefore , are untimely.
54 The provision for welfare contribution payments to employees did not appear in
future proposals
ec Respondents ' statement that a competitor did not pay premium pay was not denied.
TREND MILLS, INC. 143
SUPPLEMENTAL CONCLUSIONS OF LAW
Respondents did not violate Section 8(a)(1) and (5) of the Act as alleged in the
amended complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I recommend that the complaint be dismissed in its entirety.
Trend Mills, Inc. and Textile Workers Union of America, AFL-
CIO-CLC. Case No. 10-CA-5385. August 2, 1965
DECISION AND ORDER
On November 30, 1964, Trial Examiner Eugene F. Frey issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that the Respondent had not engaged in other
unfair labor practices alleged in the complaint and recommended dis-
missal of those allegations. Thereafter, the Respondent, the General
Counsel, and the Charging Party each filed exceptions to the Trial
Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
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, except as hereinafter noted. The Board
has considered the Trial Examiner's Decision, the exceptions and
briefs, and the entire record in this case and hereby adopts the find-
ings,l conclusions, and recommendations of the Trial Examiner with
the following modifications.
In dismissing the allegation that the Respondent refused to bargain
with the Union in violation of Section 8(a) (5), the Trial Examiner
found that the appropriate unit comprised 96 employees on the demand
date and, accordingly, that 49 valid authorizations were necessary to
support the demand. The General Counsel's contention that he should
have been permitted to litigate the supervisory status of 2 of the 96
employees appears to us to be well taken; therefore, for purposes of
1 The Trial Examiner's Decision occasionally refers to 1964 as the year in which cer-
tain events of the Union's organizational campaign, and Respondent's subsequent inter-
views with its employees, occurred. Since the campaign and the interviews all took place
in 1963, these inadvertences are hereby corrected.
154 NLRB No. 7.