Deaton Truck Line, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1965

152 N.L.R.B. 1531 (N.L.R.B. 1965)

DEATON TRUCK LINE, INC. 1531
Region 5 of the Board (Baltimore, Maryland), shall, after being signed by an
authorized representative of Respondent, be posted by Respondent immediately
upon receipt thereof, and be maintained by it for a period of 60 consecutive days
from the date of posting, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by Respond-
ent to insure that said notices are not altered, defaced, or covered by any other
material.
(c) Notify the said Regional Director for Region 5, Baltimore, Maryland, in
writing, within 20 days from the date hereof, what steps it has taken to comply
herewith.12
12 If this Recommended Order be adopted by the Board, this provision shall be modified
to read "Notify said Regional Director, in writing, within 10 days from the date of
this Oider, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that:
WE WILL, upon request, bargain collectively with District 50, United Mine
Workers of America, as the exclusive representative of our employees in a
unit composed of all production and maintenance employees, including fire-
men and truckdrivers, at our Galex, Virginia, plants, but excluding all office
clerical employees, professional employees, guards, and supervisors, as defined
in National Labor Relations Act, with respect to rates of pay and other terms
and conditions of employment, and if an understanding is reached, embody the
same into a signed agreement.
WE WILL NOT, by refusing to bargain collectively with the duly designated
representative of our employees, or in any like or related manner, interfere
with, restrain, or coerce our employees in exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist Mine Workers, or any other
labor organization of our employees, to bargain collectively through represent-
atives of their own choosing, or to engage in other concerted activities for the
purposes of mutual aid, or to refrain from any or all such activities.
All our employees are free to become, remain, or refrain from becoming or
remaining members of the above named or any other labor organization.
WEBB FURNITURE CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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, 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460,
Extension 2100, if they have any question concerning this notice or compliance
with its provisions.
Deaton Truck Line, Inc. and Local 612, International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America. Case No. 10-CA-5216. June 15, 1965
DECISION AND ORDER
On November 4, 1964, Trial Examiner Thomas F. Maher issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
152 NLRB No. 137.
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent and the Union filed exceptions to
the Trial Examiner's Decision together with supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members 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. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this proceeding, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner insofar as consistent herewith.
The issue in this case is whether the Respondent violated Section
8 (a) (3) and (1) by terminating the leases of the 34 drivers listed in
Appendix A of the Trial Examiner's Decision. As this case presents
a somewhat novel situation, we believe it desirable to restate briefly
the significant facts.
The complainants were among a group of the Respondent's employ-
ees, each of whom was employed under an arrangement whereby he
furnished and drove an over-the-road truck.' Each truck was fur-
nished pursuant to a lease agreement with the Respondent, cancellable
on 30 days' notice.
On August 1, 1959, the Respondent and the Union signed a detailed
3-year collective-bargaining contract containing several provisions sig-
nificant with respect to the present case. Article 1 defined the unit as
including all drivers and driver-owners of leased equipment. Article
6 provided that grievances or disputes arising in connection with the
contract, if not settled by the parties, "may be submitted" for final deci-
sion to an arbiter agreed on by the parties. The same article further
provided that there should be no strikes or lockouts "until the grievance
procedure herein has been complied with." Article 10 provided in part
that if the Alabama mileage tax were repealed and the cost of truck
license tags were increased, the Respondent would contribute to the
affected "operators" or drivers the equivalent of the repealed tax, to
apply toward the increased cost of the license tags. Article 22 provided
in part that the Respondent would not cancel any truck leases when the
fleet was reduced.
Effective October 1, 1961, the Alabama mileage tax was repealed and
the cost of truck license tags was increased. The Union thereupon
asked the Respondent to make the agreed contribution (as provided in
1 One of the complainants , Cheatwood , furnished a truck owned by another individual,
G. P. Dial. Each of the others furnished a truck he himself owned.
DEATON TRUCK LINE, INC. 1533
article 10) toward the new 1962 license tags which were about to become
due by the middle of the following month. The Respondent refused.
The Union then asked the Respondent to agree to arbitration of the
dispute, as contemplated in article 6. Arguing principally that the
matter was a commercial and not a labor dispute, however, the
Respondent would only agree to something less : Arbitration solely on
the basis of the contract and briefs, without the taking of any testi-
mony? As a result, the Union sought specific performance in the
United States district court. Meanwhile, the employees involved paid
the full cost of the new 1962 license tags.
On July 26, 1962, shortly before the contract was to expire, the
Respondent and the Union signed a brief so-called truce agreement,,'
containing the following provisions :
Whereas the current collective bargaining contract ... will expire
July 31,1962, and whereas ... [the parties] are presently mutually
desirous of maintaining the status quo ... with respect to labor
relations . . . , it is therefore mutually agreed :
1. The current collective bargaining contract (as modified
herein) shall remain in effect until either party serves a thirty-
day notice on the other party of his election to terminate the agree-
ment, in which event the parties agree that all necessary notices to
the Federal Mediation and Conciliation Service and the State
Mediation Service have already been served, and the right to strike
or lockout shall accrue to the parties thirty days after such notice
if they elect to take such action.
2. Future grievances which shall arise during the term of this
Truce Agreement shall be determined through the contract griev-
ance procedure. In the event of failure of settlement of any such
grievance by the parties, such grievance shall be submitted to arbi-
tration before an arbitrator to be appointed by the presiding Judge
of the United States District Court, Northern District of
Alabama ...
In November 1962, while the truce agreement was still in effect, and as
the new 1963 license tags were about to become due, the dispute flared
up again. On November 13 the Respondent sent a proposal to its lease
drivers, but not to the Union, relating to the contribution provided for
in article 10. The proposal offered the lease drivers a contribution of
1 percent of the gross revenue of their trucks from October 1, 1961, to
October 1, 1962, in settlement of its "liability, if any, for 1962 [sic]
tags." On November 16, after the old 1962 tags expired, the Respond-
ent was still resisting the Union's year-old request for arbitration of
8 See Deaton Truck Line, Inc. v. Local Union 612, International Brotherhood of Team-
sters, etc ., 314 F. 2d 418,421 (C.A. 5).
3 We agree with the Trial Examiner that the record copy of the truce agreement, Gen-
eral Counsel 's Exhibit No . 3, inadvertently places this date in 1963.
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its obligations under article 10, which provided that the Respondent
would contribute the equivalent of the repealed mileage tax toward the
increased cost of new license tags 4 The complainants, having with
respect to this same basic dispute theretofore complied on their part
with the terms of the grievance procedure established by the contract,
and being met with the Respondent's continuing refusal to arbitrate
and its November 13 proposal to modify the contract, this time con-
certedly refused to obtain the required 1963 tags-in effect a refusal to
perform their customary work, which included the furnishing of a
drivable over-the-road truck. The Respondent concedes, and like the
Trial Examiner we find, that this refusal constituted a strike.
In response to the aforesaid concerted action, the Respondent on
November 19 served a 30-day notice on each of the striking complain-
ants that it was terminating the lease of his truck. On December 6 the
Respondent served a 30-day notice on the Union, canceling the truce
agreement "in view of the Union's constantly stirring up trouble." On
December 31, the Respondent sent a letter to its drivers who were then
working, repeating its earlier statement to a representative of the
Union that it would not reemploy the lease drivers who by going on
strike on November 16 had "quit . . . in a conspiracy to close the
company."
On these facts the Trial Examiner found that the Respondent in
effect discharged the 34 complainants on November 19, 1962, because
they were engaging in a lawful and protected strike, thereby violating
Section 8 (a) (3) and (1) of the Act.
Although conceding that the complainants' concerted activity on
November 16, 1962, was strike action, the Respondent contends that
the strike was a breach of contract and hence unprotected. The Trial
Examiner rejected that defense, ruling that article 6 of the contract
did not impose an absolute no-strike ban, but a limited one that was
operative only until the grievance procedure had been complied with.
In the circumstances of this case he concluded that the article 6 restric-
tion on the right to strike was not applicable. With that conclusion we
agree. The dispute which gave rise to the strike involved basically a
continuation of the same unsettled dispute which had originated in
1961. With respect to that dispute the Union had taken all steps
required of it to comply with the grievance procedure. It had been
blocked from the completion of the final step-arbitration-by the
Respondent's adamant refusal to arbitrate, a refusal which has in effect
been adjudged by the Court of Appeals for the Fifth Circuit 5 as a
* The Respondent did not abandon its resistance to the Union 's request for arbitration
of this issue until March 1963, when the Court of Appeals for the Fifth Circuit denied its
petition for rehearing of the court's decision sustaining the Union 's position See Deaton
Truck Line, Inc. v. Local Union 612, International Brotherhood of Teamsters , etc., 314
F. 2d 418 (CA. 5).
5Deaton Truck Line v. Local Union 612 , International Brotherhood of Teamsters, etc.,
314 F. 2d 418 (C.A. 5).
DEATON TRUCK LINE, INC. 1535
breach of Respondent's own contractual obligation. These facts in
our view fully sustain the Trial Examiner's conclusion that in the cir-
cumstances of this case the no-strike restriction of article 6 was no
longer operative as to the particular dispute here involved.('
In its brief to the Board, the Respondent does not quarrel with the
Trial Examiner's construction of article 6, nor does it rely on that
article as alone sufficient to support its claim that the strike was unpro-
tected and a breach of contract. The Respondent contends instead
that the strike was in violation of the truce agreement which, it asserts,
modified the no-strike provision of article 6 to impose what was in
effect an absolute ban on strikes during the term of the truce agreement.
To support that contention the Respondent relies separately on each
of the paragraphs, numbered 1 and 2, respectively, of the truce agree-
ment as set out above.
We are unable to read the provisions of the truce agreement in the
manner the Respondent suggests. It seems clear to us that the first
numbered paragraph was intended to do no more than extend the
expiring contract for an indefinite term, subject to cancellation by
either party on 30 days' notice, while at the same time making clear
that the extension would not have the effect of requiring either party
to serve new notices, in addition to those already served, to comply with
the statutory notice requirements prescribed by Section 8 (d) of the Act
for the modification or termination of contracts. Thus, the language
in this provision on which the Respondent particularly relies-"the
right to strike or lockout shall accrue to the parties thirty days after
such notice"-is quite plainly tied to the Section 8 (d) (4) requirement
which might otherwise have been deemed to be applicable anew to the
extension of the contract by the truce agreement. Bearing in mind the
purpose of Section 8 (d) (4), it is apparent that the reference to strikes
and lockouts was intended to be confined to such strike or lockouts only
as might be related to a modification or termination of the contract.7
We hold, therefore, that the 30-day strike ban expressed in the truce
agreement had no application to the strike here in question, as that
strike, we find, was unrelated to any modification or termination of the
then-existing contract, but had as its sole target the enforcement of
the contract as written, with which the Respondent was failing to
comply.8
9 Even if , contrary to our finding herein , the grievance relating to the 1963 license tags
is technically considered a separate grievance from the one that was the subject of the
Union's suit to compel arbitration, the conclusion we reach here would be the same As
the identical basic dispute was involved , and as there was no change in the Respondent's
position that the dispute was not subject to the grievance and arbitration procedures of
the contract, it obviously would have been futile for the Union once again to attempt to
go through the formal steps of the grievance procedure, thus excusing its failure to do so.
7 Mastro Plastics Corp, and French-American Reeds Mfg. Co., Inc. v. N.L.R.B, 350
US 270, 286
sFor the same reason we find without merit the Respondent 's contention that the com-
plainants by striking forfeited their status as employees under Section 8 ( d) of the Act. Id.
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor do we interpret the second numbered provision as supporting
the Respondent's position that the truce agreement had the effect of
converting the limited strike ban of article 6 into an unlimited prohibi-
tion applicable to the situation here. Relying on Local 174 v. Lucas
Flour, 369 U.S. 95, the Respondent would have us infer such a conver-
sion from the provision in the truce agreement that future grievances
"shall" (rather than "may" as in article 6) be submitted to arbitration.
However, as is apparent from the decision of the court of appeals
adverted to above, arbitration of the dispute in question was also
mandatory under article 6, so that the truce agreement could not have
effected a change in this respect. Nor do we consider the Respondent's
argument tenable that Lucas Flour requires the explicit limited no-
strike provision of article 6 to give way to an absolute strike ban because
of the mandatory arbitration clause. Lucas Flour merely establishes
a principle of implication that is applicable in the absence of an explicit
no-strike provision, and not a binding rule of law superseding other-
wise expressed agreements. We therefore conclude that after the truce
agreement, as before, the only restriction on the right to strike was that
imposed by article 6. And as we have earlier found, that restriction
was not applicable to the dispute here involved at the time the strike
occurred.9
Other contentions of the Respondent require but brief mention. The
Respondent argues that the object of the complainants, and the pur-
pose of their strike, were to compel the Respondent to pay them a sum
of money as a contribution toward the cost of tags for the leased trucks,
and thus did not constitute a labor dispute over any terms or conditions
of employment or a legitimate subject for concerted activity. But par-
ticularly in view of the Respondent's inclusion of article 10 in the col-
lective-bargaining contract with the Union, we agree with the Trial
Examiner that the dispute was closely related to and directly affected
the complainants' net take-home pay, and was not merely a dispute
over the sum the Respondent should pay them as nonemployee lessors
for leasing their trucks. Accordingly, we find that the dispute was an
appropriate subject for concerted action, and the strike thus constituted
protected activity.
Olt is also to be noted that the provision in the second paragraph of the truce agree-
ment was applicable only to "future grievances" As earlier stated, however , the griev-
ance here involved was a continuation of one that arose long before the execution of the-
truce agreement . Moreover , as conceded in its brief, the Respondent even after the truce
agreement was executed continued to adhere to its position that the license tag dispute
was not arbitrable The Respondent is thus scarcely in a position to argue now that the
Union breached its contract by not arbitrating a dispute which the Union wanted to
arbitrate but was blocked from so doing by the Respondent's disregard of its own contract-
obligation.
DEATON TRUCK LINE, INC. 1537
The Respondent also contends that there is no evidence that any
complainant was actually discharged on November 19, 1962. How-
ever, inconsistently, it admits that it canceled their leases on that date,
in part to "scare" them into abandoning their strike and returning
their trucks to operation in the fleet. Moreover, the Respondent subse-
quently explained this action in its December 31 letter as tantamount
to a discharge, and not a mere noncoercive "tactical maneuver" to per-
suade the complainants to return to work, for it expressly stated that
it would no longer be willing to have the strikers "drive in the Deaton
fleet." We cannot agree with the Respondent's argument that this was
not a discharge, but was "at most an indication of unwillingness to
reinstate in futuro."
The Respondent advances still other contentions, all of which have
been carefully considered. We do not dwell on them here as they are
patently without merit.
The Union, on its part, contends that the Respondent was obligated
to lay off the drivers of its own trucks and replace them with the com-
plainants, as they requested on November 16; it therefore takes excep-
tion to the Trial Examiner's failure to provide remedial relief requir-
ing reinstatement and backpay from that date. It bases its argument
largely on the seniority provision of the contract, which reads in part :
Seniority shall prevail. . . . When it becomes necessary to reduce
the working force the last man hired shall be laid off first....
However, the General Counsel did not allege any discrimination in this
regard and Section 3 (d) gives him final authority in respect to the issu-
ance and prosecution of complaints. Moreover, it is clear to us that
this provision of the contract was intended to apply only in case the
Respondent itself took action to reduce its working force. Since that
was not the situation here, but rather it was the complainants who took
action by going on strike, we find no merit in the Union's contention.
Accordingly, we find, in agreement with the Trial Examiner, that the
Respondent has violated Section 8(a) (3) and (1) of the Act by can-
celing the complainants' leases and thereby terminating them on
November 19, 1962.
To remedy the violation, the Trial Examiner recommended that the
Respondent affirmatively offer to reinstate the complainants upon their
unconditional request therefor, and that it also reexecute the requisite
truck leases.10 We construe the term "unconditional" as including the
customary furnishing by each complain ant of an appropriately licensed
truck.
io As the Trial Examiner found , no such unconditional request for reinstatement had
been made so far as the record shows.
7 89-730-66-vol 152-98
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner also recommended that the Respondent make
the complainants whole. We construe this backpay obligation as not
starting until an unconditional request for reinstatement is made."
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended , the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent, Deaton Truck Line, Inc., Bir-
mingham, Alabama, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recommended Order,
as so modified :
1. Add the following sentence at the end of paragraph 2(a) :
"Notify those employees listed in Appendix A attached to the Trial
Examiner's Decision, 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."
2. Add the following sentence at the end of paragraph 2(b) :
"The backpay will be computed on a quarterly basis in the manner
set forth in F. W. Woolworth Company, 90 NLRB 289, with interest at
the rate of 6 percent per annum, as set forth in Isis Plumbing & Heat-
ing Co., 138 NLRB 716."
3. Add the following immediately below the signature line at the
bottom of Appendix B attached to the Trial Examiner's Decision :
NoTE.-We will notify those employees listed in Appendix A
attached to the Trial Examiner's Decision, if presently serving in
the Armed Forces of the United States, of their right to full rein-
statement upon application in accordance with the Selective Serv-
ice Act and the Universal Military Training and Service Act of
1948, as amended , after discharge from the Armed Forces.
"The Trial Examiner found that the Respondent 's invitation to the complainants to
return to work during the strike , but after their discharge, effectively tolled the running
of further backpay. We regard this finding as inadvertent , since the Trial Examiner had
previously found, correctly , that the Respondent had discriminatorily discharged the com-
plainants while they were on strike and that backpay should therefore be awarded only
from the date on which the striking employees make an unconditional application for
reinstatement.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on January 4, 1963, and an amendment thereto filed on
March 5, 1964, by Local 612, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Charging Party herein, the Regional
Director for Region 10 of the National Labor Relations Board, herein called the
Board, issued a complaint on behalf of the General Counsel of the Board on March 6,
1964, and an amendment thereto under the signature of the Acting Regional
Director on March 23 , 1964, against Deaton Truck Line, Inc., Respondent herein,
DEATON TRUCK LINE, INC. 1539
alleging violations of Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act. In its duly
filed answer, Respondent, while admitting certain of the allegations of the complaint,
denied the commission of any unfair labor practice. As the subject matter of the
amended charge constituted but a "particularization" of the violations alleged in the
original one, and as the allegations of the complaint are clearly related and ger-
mane to the original charge, Respondent's contention that the jurisdiction of the
Board is proscribed by Section 10(b) of the Act is without merit. N.L.R.B. v.
Fant Milling Company, 360 U.S. 301, 307.
Pursuant to notice, a hearing was held before Trial Examiner Thomas F. Maher
on April 28, 29, and 30, 1964, in Birmingham, Alabama. All parties were present
and represented by counsel and were afforded full opportunity to be heard, to
present oral argument, and to file briefs with me. Briefs were filed by the parties
on June 15, 1964.
Prior to hearing in this matter Respondent filed a motion to dismiss the complaint
herein and General Counsel responded in opposition thereto. At the hearing I
reserved ruling. Upon review of the grounds urged by Respondent in its motion,
I note that among them is the Regional Director's delay in issuing the complaint
herein. As laches does not lie against an agency of the U. S. Government I reject
this as a ground for dismissal I Respondent likewise urges dismissal grounded upon
(1) the Charging Union's efforts to secure a contract containing a so-called hot
cargo provision in violation of Section 8(e) of the Act, (2) upon a claim of vio-
lence attending a strike and picketing found to have occurred during a strike at
its premises 2 2 months following the activity found herein, and (3) upon a show-
ing that a Federal district court injunction against the Union was outstanding and
a Board proceeding was presently pending with respect to an alleged violation by
the Union of Section 8(b)(7) of the Act. As none of the circumstances alleged
by Respondent bear any relevance to the subject matter before me, I hereby deny
its motion (see infra).
Upon consideration of the entire record, including the briefs of the parties, and
upon my observation of each witness appearing before me, including his demeanor
throughout the hearing as well as the substance of all his testimony, I make the
following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. THE BUSINESS OF THE RESPONDENT
In cases involving Deaton Truck Line, Inc., the Board and the courts have hereto-
fore held that it is engaged in commerce within the meaning of the Act 3 and I
accordingly conclude and find it to be so engaged for the purposes of this proceeding
as well.
H. THE LABOR ORGANIZATION INVOLVED
It is undisputed that Local 612, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, is a labor organization within the
meaning of the Act, and I so conclude and find.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent and the Union have what is fast becoming a tradition of litigation.
Thus there have been at least four cases in the Federal courts wherein the Union
seeks, by recourse to Section 301 of the Act, to compel arbitration of grievances
alleged to have arisen under the contract.4
Similarly, in 143 NLRB 1372 the Board dismissed a complaint against the
Respondent herein which alleged an unlawful refusal to bargain in violation of
I T. H. Burns and R. H. Gillespie , d/b/a Burns and Gillespie , 113 NLRB 434, 437.
2 Local 612 , International Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America ( Deaton Truck Line , Inc), 146 NLRB 498.
3146 NLRB 498; 143 NLRB 1372; 307 F. 2d 748 (C.A. 5) ; 314 F. 2d 418 (CA 5).
'International Brotherhood of Teamsters, etc., Local 612 v Deaton Truck Line, Inc,
307 F. 2d 748 (C A. 5) ; Deaton Truck Line , Inc v. Local Union No 612, International
Brotherhood of Teamsters, etc, 314 F. 2d 418 (CA. 5) ; Deaton Truck Line, Inc. V.
Local Union No. 612, etc Civil Action 10135-S, U.S D.C, N Dist Ala. ; and Civil Action
No. 10297, U.S D.C., N. Dist. Ala, involving the same parties and general subject matter.
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8 (a)(5) of the Act. The Board's determination there that certain of the
drivers were employees and not independent contractors as claimed by the Com-
pany has been sustained by the U. S. Court of Appeals for the Fifth Circuit.5
Subsequently, upon charges filed by the Company' s counsel , the Union was found
by the Board in 146 NLRB 498 to have restrained and coerced company employees
by threatening them and inflicting bodily harm and by interfering with the proper
and safe operation of motor vehicles. Thereafter, following the filing of a charge
against the Union in Case No. 10-CP-37, further litigation ensued in the Federat
district court (Civil Action No. 64-64), a suit for an injunction brought by the
Regional Director against the Union pursuant to Section 10(1) of the Act. There-
after, following a hearing before Trial Examiner Nachman his decision in this,
matter issued on July 6, 1964, and is presently before the Board.
None of the foregoing except the determination of the Board and the court that
the drivers are employees has any dispositive impact upon the instant matter. Iden-
tifying this litigation, however, does serve to position this case properly within the
general framework of conflict. In such a climate the instant proceeding becomes
but another point along a tedious line, with no assurance that it will be the termi-
nal one. I take official notice of these Board and court decisions already issued.
Respondent, a licensed ICC common carrier, located in Birmingham , Alabama„
has recognized the Union as the bargaining representative of certain of its employ-
ees for a number of years. The latest relevant contract between the parties was
for the period from August 1, 1959, to July 31, 1962, with provision for year-to-
year renewal unless terminated by notice.
During this period Respondent maintained a fleet of approximately 263 trucks.
Three of these it owned outright and the balance it operated under lease agreement.
During the latter part of 1962 Respondent increased the number of its own trucks
to 40. Of the leased trucks 148 were owner-operated and 112 were operated by
nonowner drivers.
The drivers or operators 6 in the Deaton fleet are classified as follows: ( 1) Deaton,
employees who drive Deaton-owned trucks, (2) owner-operators who own a single
truck which they drive and lease to Deaton, one of two classifications involved in
this proceedings, (3) multiple owner-operators who own more than one truck
leased to Deaton and who drive one of their own vehicles, and (4) nonowner-
operators, the other classification involved herein, who drive trucks owned by either
a multiple owner-operator or by a nondriving owner as the case may be, who has
leased trucks to Deaton.
During the spring and early summer of 1962 the parties initiated negotiations
directed to a renewal of the then expiring contract. Prominent among the points
of disagreement were (1) the dispute as to who would pay an increased State
license tag fee, and (2) the employee status of certain of the drivers claimed by
the Company to be independent contractors. As they relate to the issues presented
here each of these items will be considered in detail hereafter.
Upon failure of the parties to arrive at a new contract they executed a truce
agreement on July 26, 1962, which met with the approval of the Federal district
judge before whom the arbitration matter was pending. The effect of this truce
agreement was to continue the terms and conditions of the last contract, subject to
cancellation upon 30 days' notice.
B. The truck licensing dispute
Prior to October 1, 1961, Alabama tax law required that an employer pay a
specified sum per mile for the total mileage driven by a tractor and trailer in the
State of Alabama for commercial use. In addition, as in Respondent's operations,,
the owner-operator of the tractor and trailer, pursuant to agreement, purchased his
own license tags, which at that time amounted to $50. By legislative enactment
effective October 1, 1961, the mileage tax was repealed and the cost of license tags,
was increased by from $50 to $450. Anticipating this eventuality the contract
between Respondent and the Union contained the following provision:
State Mileage Tax and License Tag
In the event that the Alabama mileage tax is repealed and license tags are.
increased the Company agrees to pay the equivalent of the tax to the opera-
tors to apply on the increased cost of the Alabama State License Tag, not to
exceed increase in cost of the Alabama State License Tag.
s Deaton Truck Lane, Inc. v. N.L.R B., 337 F. 2d 697, (C.A. 5), No. 21532, decided
October 2, 1964.
6 The terms driver and operator are used interchangeably herein.
DEATON TRUCK LINE, INC. 1541
The parties disputed the meaning of this provision as it pertained to the legislative
revisions; considerable but fruitless negotiations were had; and the Union demanded
arbitration of the issue under article 6 of the contract, being the established griev-
ance procedure. In addition to arbitration, article 6 also places the following limi-
tation on the right to strike:
There shall be no strikes or lockouts by the parties until the grievance proce-
dure herein has been complied with.
The Respondent, while agreeing to arbitrate the mileage tax and licensing issue,
insisted on limiting the proceeding to a submission of documents without the tak-
ing of testimony, a condition which the Union rejected and which formed the basis
of its several suits to compel arbitration.7
So much for the 1962 license tags. As 1963 tag buying season approached in
November 1962 neither side had relaxed from its fixed position. Indeed the July
1962 truce agreement specifically preserved the positions of the parties pending the
resolution of the issue by the court.
On November 11, 1962, the Saturday prior to the November 15 expiration date
for current license tags, the Union held a meeting of drivers in response to growing
employee dissatisfaction with the prospect of paying an increased license fee with-
out the contributory support of the Company. What transpired at this meeting
-was variously described by witnesses appearing before me. In essence, however, it
may accurately be recorded that none of them welcomed the prospect of paying the
increased fee, that they were incensed at the Company's resistance to what they
deemed its contractual obligation to contribute, and that they were resolved not to
purchase tags for their respective trucks to meet the November 16 deadline. A more
critical review must be made, however, of the nature and effect of their expres-
sion , and the testimony on this phase is not in complete accord.
Union President G. Sam Webb testified that the meeting he told the employees
that it was up to them whether or not they bought the tags, that he could not tell
them which course to take, but that they were employees and should report to work.
Employee Dawson D. Tucker testified to a group decision, however, stating that
"the men discussed it between theirselves, and the way I understand it, that no one
was to buy their tag unless the Company came up with their part of the money....
We would go down there and make ourselves available to work and if they let us
work, we were to work." George H. Boyd, a multiple-owner called as a witness by
Respondent, testified credibly to the same thing, stating that a vote was taken "and
it was unanimous not to buy tags." Owner-operator Eugene Moore, Jr., similarly
testified. On the other hand employee James M. Sides testified that the subject of
purchasing tags was discussed at the meeting but that no one told him what to do.
Upon further questioning of Sides concerning what occurred at this meeting his
recollection became so clouded that I have no alternative but to reject all of his
testimony on the subject.
What transpired at the meeting, together with the employees' generally expressed
-sentiment , appears to have been fully known to the Company. Accordingly, on
November 13 it addressed the following communications to its drivers:
November 13, 1962.
TO ALL TRUCK OWNERS UNDER LEASE CONTRACT
WITH DEATON TRUCKLINE, INC
A number of owners have inquired what Deaton would do concerning for
hire tags. In response, the Company makes this offer:
It will settle with any owner its liability, if any, for 1962 tags by paying in
cash immediately one percent of the gross revenue earned by the truck from
October 1, 1961 to October 1, 1962, provided the truck was operating in the
Deaton fleet on November 1, 1962.
This proposition is for immediate acceptance and may be withdrawn at any
time.
DEATON TRUCK LINES INC.,
By (S) Edwin M. Sellers
EDWIN M. SELLERS, President.
November 13, 1962.
To All Drivers in the Deaton Fleet
We have been informed that the International and local unions are planning
a strike on Friday, November 16, 1962. This strike will be in direct breach of
the present contract.
7 Supra, footnote 4.
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is to notify you that seniority has- never been used to select a truck.
There will be no lay-offs by the Company on Friday and, therefore, no place for
seniority to operate.
Those trucks that are properly equipped will be expected to operate as in the
past, with each using the driver now operating it. Others need not apply, and
if they come on Company property, they will be considered trespassers. Mass
demonstrators will be treated as trespassers. Company-owned trailers should
be properly parked on Company property. Trucks not prepared to run should
be kept off Company property.
Drivers of properly equipped trucks who will continue operating should
notify the Company by 10:00 a.m. on November 15, 1962. Others are warned
not to trespass on Company property.
Sincerely,
DEATON TRUCK LINE
By (S) Edwin M. Sellers
Its President
Though each of you may be well acquainted with the U. S. law concerning
interference with the trucks or the drivers operating them, we are attaching a
copy of the federal statute.
E. M. S.
C. The concerted refusal to furnish licensed vehicles
November 16, 1964, was the date on which all trucks were required to operate
under the new licenses. As the owner-operators appeared for work at Respondent's
Birmingham terminal that morning they were met by the terminal guard who
inquired of them if their trucks were licensed and prepared to run. Those who,
told him that they had not purchased tags were instructed to leave the premises.
Those others whose trucks were properly licensed proceeded to sign the "ready
book" or truck register in the usual fashion. In many instances, however, owner-
operators whose trucks were not licensed were permitted to sign the "ready book"
but did not designate their truck number opposite their signature. Each individual
who appeared for work also volunteered for a driving assignment on one of the 40
Deaton-owned trucks, claiming seniority rights to such an assignment under the
contract. Their requests were refused 8 It was stipulated by the parties that the
following owner-operators failed to furnish equipment with proper tags on Novem-
ber 16, 1962:
Hollis Berry E P. Satcher, Jr. C. A. Morgan
Berd S. Butler Nick Sergio Fred Merrell
F. J. Cain J. M. Sides D. B. Tucker
W. L Curlee J. T. Stephens Ira Waldrop
William A. Davis W. L Stewart A. W. Walters
W. M. Evans W. L. Howton Leon Weaver
C. W. Gravette W. J. Kelley Lloyd Weaver
M. E. Hall Russell Land W. A. Pierce
M. P. Pittman A. S. Love Sterling E. Gable
Harold H. Roberts Earl Lucas L. R. Graves 9
Ralph Robinson Leroy Lucas
D. The cancellation of leases
Three days later, on November 19, 1962, Respondent canceled the leases of
those owners who by that date had still not purchased tags, or having purchased
them had failed to return to work. The letter of cancellation signed by President
Sellers stated as follows:
This is to notify you that Deaton Truck Line, Inc., hereby elects to terminate
your lease or leases on all of your equipment under, in accordance with, and
pursaunt to the terms of said lease agreement. This is the thirty-day notice of
cancellation in accordance with the terms of said lease or leases.
8At the hearing Respondent Vice President Sizemore, in no way relying upon the fact
as the Company's reason for refusing assignments to company-owned trucks, credibly
testified that only two or three of these trucks were then available, the others being in
operation on over-the-road runs.
0 The stipulation from which this list of 32 owner-operators was compiled contained
names of 17 other owner-operators who likewise failed to furnish properly licensed
trucks. As none of these individuals appeared to be the subject of any allegation herein,
I deem it unnecessary to burden these findings with a listing of their names.
DEATON TRUCK LINE, INC. 1543
E. The driving personnel involved
To the extent that it is possible it would be appropriate at this point to identify
more precisely those who withheld their trucks and/or services on November 16,
for the list above is by no means all-inclusive.
According to Union President Webb approximately 59 individuals appeared on
November 16 unprepared to drive either their trucks or the one to which they were
assigned . Respondent 's counsel suggested at the hearing , however, that the num-
ber was a larger one. As Respondent 's several officials credibly testified to success
in inducing a considerable number to return to work within a short space of time,
and as the Union thereafter on January 3, 1963, demanded the return of 57 to their
work, it would appear that considerably more than Webb's estimated 59 of the
Company's total work force were originally involved. In his complaint General
Counsel alleged that 49 individuals had been discriminated against , and upon the
completion of his case-in-chief moved, over the Charging Party's objection, to
delete the names of 11 of this number.10 As the General Counsel had adduced no
evidence concerning these individuals, I granted his motion and upon my review of
the record I adhere to my original ruling.
Of the 38 discriminatees thus now remaining in the complaint, 32 of them were
stipulated to be owner-operators who had failed to provide necessary tags (supra)."
The status of two others, A. R. Evans and Watkins, is in question. As to the
remaining 4 individuals who make up the total of 38 whose fate is now before us
there are in each case unusual circumstances which suggest the possibility that they
may not have been properly included with the group of alleged discriminatees.
J. O. Cheatwood was a driver, not an owner-driver, and was therefore under no
obligation to procure license tags for a truck. On November 16 he signed the "ready
book" and unlike those who withheld their trucks and services he included the number
of his truck (403) with the added notation that it was in the shop.12 Cheatwood
never thereafter advised the Company that the truck assigned to him was out of the
shop.13
It is obvious from his actions that driver Cheatwood, although not the withholder
of a license tag, made common cause with those who had done so by withholding his
services as a driving employee. He is therefore in no different a position than those
with whom he joined, and I will include him among those engaged in the withholding
of services on and after November 16.
C. E. Evans is likewise a nonowner-driver, driving a truck owned by his sister-in-
law, Julia Evans, the lease for which appears to have been canceled on October 31,
1963, effective 30 days thereafter. Thus, when C. E. Evans signed the "ready book"
without including the number of a properly licensed truck it could well have been
because his truck was soon to go out of service and not necessarily because he was
a member of a group making common cause. Indeed the credible testimony of
Sizemore and the supporting ICC report in the record establish that Evans thereafter
drove in the fleet until on or about December 9, 1962, on a truck (No. 139) owned by
I. D. Byrd. As there is no evidence in the record that driver C. E. Evans then made
a common cause with those individuals who withdrew their services beginning on
November 16, I will not include him among the alleged discriminatees , but rather
as an employee who quit his employment.14
L. W. Roberson was a nonowner-driver for a multiple-owner, Felix Trimm. Trimm
was among those who failed to furnish his equipment with proper tags on Novem-
ber 16. Roberson, however, was available to drive on that date but was prevented
"These were 0. M. Acton, Joe Bonvillian, James P Johnson, K. J. Lee, Billy Ray Wil-
liams, Joseph A. Williams, Donald Leonard, Robert Reno, Ralph Wilson, J. D. Mears, and
Clyde Crowley.
UAs previously noted (footnote 9) this group did not include 15 other owner-drivers
who had also failed to comply with the licensing requirement. As to these it may be
speculated that they were among those whom Respondent induced to return to
work under the existing arrangement, thus explaining their absence from the list of
alleged discriminatees.
12 This truck was owned by G. P. Dial of whom it is stipulated that he failed to furnish
equipment with proper tags on November 16, 1962
13 The credited testimony of Vice President Sizemore. Clieatwood was not called to
testify
141 am aware that C. E. Evans was among those whose reinstatement the Union,
requested on January 3, 1963, and that his name was included thereafter on the charge
filed with the Board. I cannot, however, accept the Union's belated statements that
Evans was a member of the group as a substitute for evidence or for Evans' own un-
expressed intentions , or as rebuttal of credible evidence to the contrary.
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from doing so only by Trimm's decision. In this respect it appears that upon Trimm's
failure to tag his trucks another of his drivers, H. J. Banks, drove for a multiple-owner,
Hydrick, whose trucks were properly tagged. Upon the foregoing it is apparent that
Roberson was also available. But there is no evidence that he was one of those who
made common cause to withhold services. His name, therefore, is not properly
among those who were allegedly discriminated against for doing so. Nor, as is
C. E. Evans' case, am I persuaded to a contrary view merely because the Union
requested he be given a job, albeit the request was in the nature of a request for rein-
statement. Nor is there evidence that he sought seniority preference to which General
Counsel claims he was entitled and of which he was discriminatorily deprived. For
the foregoing reasons I will not include him among the alleged discriminatees.
W. J. Henderson was a driver for a multiple-owner, McCaleb, who, like Roberson's
owner above, failed to buy tags for his trucks. Driver Henderson, like driver Rober-
son, was available to drive thereafter and did drive for Hydrick who had purchased
his tags. But Henderson, unlike Roberson, did not thereafter merely quit his employ-
ment. Henderson, assigned to drive equipment from Florida to New Orleans, aban-
doned it at a truck stop in Poplarville, Mississippi, and took off. For this the
Respondent terminated him on its records.'° As credible evidence thus discloses
Henderson to have been terminated for cause I will not include him among the
alleged discriminatees.
In addition to the foregoing specific cases theie are, in addition to the listed 32
owner-operators (supra), 2 others whose status as alleged discriminatees is doubt-
ful-A. R. Evans and Sam Watkins.
Although A. R. Evans, the owner of a truck leased to Deaton, appeared at the
terminal and signed the "ready book" on November 16, his name was not included
on a stipulated list of owner-operators who performed services in the Deaton fleet
prior to November 16 (General Counsel's Exhibit No. 8). In fact the name had
actually been deleted from the list before it was admitted into evidence. Everything
else in the record concerning this individual points to the fact that he was not an
employee at this time. Thus on July 16, 1962, the Union requested and Evans was
granted a leave of absence to perform official union business Thereafter, according
to Vice President Sizemore, Evans reported that he was physically incapacitated and
had another individual drive his truck. On October 31, 1962, A. R. Evans' truck
lease was canceled, as was the lease of the truck owned by his wife Julia (supra), both
cancellations being effective 30 days thereafter. As there is thus no evidence to
suggest that A. R Evans had failed to license his truck for some reason other than the
-established fact that immediately thereafter it was going out of Deaton's service, I
shall not include him among the group of discriminatees merely because he appeared
on the scene and had signed his name in the "ready book." Indeed the Board, in
Local 612, International Brotherhood of Teamsters, etc (Deaton Truck Line, Inc.),
146 NLRB 498, has affirmed Trial Examiner Hunt's finding respecting this individual
that "it does not appear that he has resumed work for the Company "
In any event it appears from that decision that A R. Evans was not a completely
disinterested bystander in an incident which occurred several months after the
November 16 action herein. There his son, Robert Evans, viciously beat driver
Floyd Moody into a state of bloody unconsciousness for the stated reason (rejected
by me and the Board) that the victim had "shoved his daddy" (A. R. Evans). Because
this battery occurred in the presence of pickets and because A. R. Evans was found to
be the Union's representative, the Union itself was held to be responsible and a viola-
tion was found against it. As A. R. Evans has been found to have been thus involved
in a situation growing out of the very transaction under consideration here, I am not
disposed under any circumstance present here to include him among those who might
be entitled to relief.
Sam Watkins, an owner-operator, paid for his tags prior to November 15, 1962, but
received in return only a receipt for his payment, the tag supply having been tempo-
rarily exhausted. He does not appear to have reported for assignment on the 16th,
but instead put his truck in the shop. Thereafter on November 18, still not having
procured the tags he had paid for, Watkins reported at the terminal and was asked by
a guard if he had his truck tags. Without any further explanation Watkins replied
that he did not have them. He was then told to leave the premises and he did so.
His lease was thereafter canceled by letter.
Watkins' testimony provides an interesting study in obfuscation. So much so that
it is difficult to determine whether he was being evasive or merely obtuse. On my
observation of him I am inclined to the fotmer, Watkins wanting, in a sense, to be
considered a member of the protesting group yet not entirely willing to forego his
source of livelihood, and not entirely willing to convey how he actually felt in the
16 The credited testimony of Vice President Sizemore.
DEATON TRUCK LINE, INC. 1545
matter. As the whole record thus discloses that the effect of Watkins' actions was to
make him a withholder of his truck and services, albeit in equivocal fashion, I would
include him in the group of alleged owner-operator discriminatees.
F. The discharges
On December 6, 1962, Respondent, in accordance with the truce agreement's provi-
sions, canceled this document stating that it did so "in view of the Union's constantly
stirring up trouble."
Thereafter on December 31, 1962, Respondent sent a letter to those individuals
who were then driving in the Deaton fleet, but specifically did not send it to those
involved in the November 16 incident.16 The letter stated in pertinent part as follows:
I want you to know that I met with Sam Webb on Wednesday, December 26,
1962, in a lengthy meeting, in which I stated that I would be willing to sign a
contract with the Teamsters with the provisions that the financial and working
conditions would be the same that the men are operating under as of this date.
These conditions include that the men will be paid 1% of their gross revenue,
at the end of the tax year, towards purchase of their license tag. The company
will continue paying Federal Excise Tax or will pay Workmens' Compensation
as provided under the 1954 Workmen's Compensation Act. I also stated that I
would not be willing to lease or have the men drive in the Deaton fleet that quit
on November 15 in a conspiracy to close the company. There was no misunder-
standing between Mr. Webb and myself concerning the above conditions and
under them, I would be willing to sign a long-term contract. These are the only
conditions under which the company can operate and I believe that you will find
that they are better than those of any other company in this area with a similar
operation. [Emphasis supplied.]
It is General Counsel's position that by this letter the Respondent formally ratified
its termination action by discharging those whose leases it had previously canceled.
Respondent, on the other hand, points to the fact that none of these people received
the letter, had already been urged to come back, and were in effect being "pressured"
to return by what counsel repeatedly referred to as tactical maneuver; and that
actually only four or five "troublemakers" were persona non grata.17 Whatever
determination is made of this argument it is clear that the portion of the letter under-
scored by me above expresses on its face Respondent's stated understanding that the
employment of all who had participated in the objectionable activity had been termi-
nated, and I so conclude and find.
G. Analysis and conclusion
Present for resolution here are several comparatively elementary issues; namely, the
employee status of the owner-operators and nonowner-operators whose alleged dis-
crimination is involved here, the character of the activity in which these individuals
participated on and after November 16, 1962, and finally the effect of the Respondent's
cancellation of truck leases and its subsequent formal announcement that the partici-
pants in the activity had been terminated.
1. The status of the owner-operators
In 143 NLRB 1372, a case involved Respondent's refusal to bargain with the Union,
the Board concluded that the owner-operators involved here are employees of Deaton
and "as such are entitled to the rights guaranteed and protection afforded by the Act."
Upon this conclusion, as affirmed upon petition for review by the United States Court
of Appeals for the Fifth Circuit,18 it is settled that these individuals are employees for
the purposes of this case and I so conclude and find.
2. The status of nonowner-operators
Those operators who drive trucks owned by individuals who have leased the trucks
to Deaton are in no different position than owner-operators. In 143 NLRB 1372, the
Board held, with court approval, that in view of the control exercised by Deaton over
these individuals they are employees of Deaton, alone. Upon this determination I so
conclude and find here.
19 This fact was stipulated to by the parties at the hearing.
17 Vice President Sizemore named A. R. Evans, whom I have excluded from considera-
tion for other reasons (supra ), A. W Walters, C W. Gravette, and Dawson Tucker.
18 337 F. 2d 697, No. 21332, decided October 2, 1964.
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The concerted activity
The singlemindedness of the employees who failed to provide properly licensed
trucks leaves no doubt that this was an organized effort to withhold their services and
the use of their trucks. The evidence of prior discussions of this procedure is ample,
and its place on the agenda of the union meeting held several days earlier was estab-
lished by the credible testimony of employees Tucker, Boyd, and Moore (supra).
Certainly the arm of coincidence could never be so long as to embrace such unity of
purpose; and any doubts I might have or inferences I might make to the contrary
would be, to say the least, unreasonable.
Clearly this activity was a strike, for it possessed the basic ingredients of a strike-
"`the relation of employer and employee" and "a quitting of work." 19 That the
drivers appeared ostensibly for work made the situation no less a strike, for craftmen
appearing for work without their tools are as surely withholding their services as
effectively as if they refused to work at their benches with tools at hand. I see no
distinction when the "tool" happens to be a truck that may not be driven; for the
cessation of work by a group is no less a strike because the group may not have labeled
it a strike, or engaged in the additional activities which usually accompany a strike.20
Thus upon facts less obvious than those presented here, the Board has held that a
strike may be called "informally in a manner which is understood by the initiated,"
stating that "the critical question is not how the [Union] gave the strike call but
whether, no matter how they did give it." 21
Respondent contests the legitimacy of its employees' November 16 conduct on two
further grounds • (1) that it was a deliberate effort to destroy its business, citing the
Supreme Court's Decision and N L.R B. v. Local Union No 1229, International
Brotherhood of Electrical Workers, A.F.L. (Jefferson Standard Broadcasting Com-
pany), 346 U.S. 464, and (2) that it was in violation of a no-strike provision in the
contract and truce agreement in force between the parties at the time the activity
.occurred.
As to the harmful effects of the withholding of trucks and services on November 16
the same may be said to be the purpose of all economic strikes and the effect of many
successful ones. In the Local 1229 case the disparagement of a product was involved
in a context found by the Supreme Court to have been completely removed from the
,existing labor dispute, and it was this activity the court proscribed. Here, on the
other hand, no product or service was disparaged, no violence perpetrated, nor prop-
erty destroyed. What did occur was the withholding of employee-owned, employer-
leased "tools", the trucks, and employee services, in the very context of a labor dis-
pute, the contract dispute concerning truck licensing. Thus Local 1229 has no rele-
vance except to more firmly establish the protected character of the November 16
-activity, and I so conclude and find.
Nor is the no-strike provision of the outstanding agreement of any significance. A
reading of that provision (supra ) discloses that "there shall be no strikes or lockouts
by the parties until the grievance procedure herein has been complied with." Not
.only had the grievance procedure not been complied with but Respondent most
actively resisted compliance, and still does, defending in the Federal court even now
its right not to arbitrate the mileage tax and licensing provisions. Under such cir-
cumstances the limitation upon the Union's right not to strike is clearly not applicable
and I so conclude and find.
Finally, Respondent sought by way of offer of proof to introduce evidence of strike
and picket line violence to establish that the concerted activity in which the employees
had engaged had thereby lost the protection of Section 7 of the Act. As noted in the
findings herein (supra), the concerted activity which resulted in the truck lease can-
cellation was the withholding of trucks and services on and after November 16, 1962.
19 The Point Reyes, 110 F. 2d 608 , 609-610 ( CA. 5). See also: N.L.R.B. v. J. I. Case
Company , Bettendor/Works , 198 F 2d 919 (CA 8).
20 Massey Gin and Machine Works, Inc , 78 NLRB 189.
21 Amalgamated Meat Cutters and Butcher Workmen o f North America (A.F.L ), Local
No. 421 (The Great Atlantic and Pacific Tea Company), 81 NLRB 1052, 1057, citing
United States v. International Union , United Mine Workers , 77 F Supp 563, 566
(D.C D C ), affd 177 F . 2d 29, 35 ( C.A.D.C ), cert. denied 338 U.S 871 , wherein the
lower court stated:
These men , it is contended , did as individuals , what they had a right to do, work
or not work , and they decided not to work.
Now we have to consider the validity of that claim objectively If a nod or wink or
a code was used in place of the word "strike" there was just as much a strike called
,as if the word "strike" had been used
DEATON TRUCK LINE, INC. 1547
The violence referred to in Respondent's offer of proof, however, occurred in connec-
tion with a strike which began 2 months later on January 12, 1963, in protest of the
Company's refusal to bargain with the Union. See 146 NLRB 498. As the evidence
of violence sought to be introduced bears no relevance to the specific concerted activity
involved here, I reaffirm my ruling rejecting it.
In the summary, and upon consideration of all of the foregoing, I conclude and
find that the action of the Respondent's owner-operators and drivers whereby on and
after November 16, 1962, they withheld their trucks from service in Respondent's
fleet by failing to properly license them and withheld their services as drivers con-
stituted an economic strike, and as such was a concerted activity protected by Section
7 of the Act.
4. Respondent's discriminatory action
When it learned that its employees were about to withhold their trucks from service
in protest of the position it had taken regarding the truck licensing-that is to say,
when it learned the strike was imminent-Respondent notified the employees by
letter that it would not withdraw from its position respecting the licensing.24 When
thereafter the employees engaged in a strike against its licensing policy, the Company,
in retaliation and specifically because the employees had withheld trucks and services,
canceled the leases of the trucks. This procedure Vice President Sizemore described
as being tantamount to termination of their employment, for when asked at the hear-
ing if so far as he was concerned he considered the owner-operators who received
cancellation notices still to be working for Deaton he replied that he did not.
Nor was Sizemore's estimate of the terminal effect of these cancellations given at
the hearing an isolated judgment. Contemporaneously, in the Company's letter of
December 31, 1962, President Sellers (supra) first expressed the judgment wherein
he repeated his earlier oral statement to the union president that he "would not be
willing to lease or have the men drive in the Deaton fleet that quit on November 15
in a conspiracy to close the Company."
Sizemore's testimony and Sellers' contemporaneous explanation of why the leases
were canceled leaves no doubt as to the real and stated reason. They were canceled,
and the men were thereby terminated, because they engaged in a concerted activity
which I have found to be within the purview of Section 7 of the Act. Citation of
authority is unnecessary to establish that such conduct on the part of Respondent
constitutes discrimination against its employees in violation of Section 8(a)(3) of
the Act, and thereby interferes with, restrains, and coerces the employees in the
exercise of their statutory rights in violation of Section 8(a)(1). I so conclude and
find that Respondent has done this with respect to those employees whom I have pre-
viously found engaged in the withholding of trucks and services on November 16,
1962, and thereafter.23
21 Throughout this case, at the time the incidents occurred, again at the hearing, and
finally in the briefs, seniority was continually injected as a prime issue. Thus it is claimed
.that all of these drivers and owner-operators whose trucks were not available on Novem-
ber 16 had seniority rights in excess of the drivers hired by Deaton itself, and who were
presently driving Deaton-owned trucks, and that the rejection of these rights constituted
a form of discrimination.
Quite apart from the fact that upon credible evidence I have found that only two or
three such trucks were then available in the Birmingham area for reassignment (supra,
footnote 8), and as no record was made of the relative seniority standing of allegedly
competing employees, it occurs to me that to explore the claim of seniority would involve
a disproportionate use of time and discussion here I therefore deem it unnecessary to
explore this problem, including a detailed consideration of truck leases and leasing
procedures, and of seniority provisions of the contract that the problem entails, to arrive
at the same conclusion as to discrimination that I shall reach independently. Cf. Cald-
well Mfg. Co , Inc. 149 NLRB 112, footnote 2.
2 Supra. The names of the employees affected are collated in the attached Appendix A.
At the hearing Respondent's counsel insisted that its cancellation of leases was dictated
not only by ICC requirements respecting liability, but as a "tactical maneuver" to spur
the return of the striking employees, that its letter of December 31, 1962, was for the
same purpose, and that during the period intervening it made countless efforts to enlist
the drivers' return In support of this assertion President Conaway and Vice President
Sizemore credibly testified that all but four or five employees, the "troublemakers," are
and always were eligible to return. Because Respondent considered them to be the ring-
leaders in a conspiracy to close its business it would not invite or reinstate A. W Walters,
C. W. Gravette, and Dawson Tucker, and also A. R. Evans, whom I have excluded for
other reasons ( supra ). Respondent 's reliance upon the so-called " tactical maneuver"
theory is misplaced and has no bearing upon my finding of discrimination herein. The
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Company described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
I have found and concluded that Respondent, by canceling the truck leases of cer-
tain of its employees because they engaged in concerted activity protected by the
Act, thereby terminated them discriminatorily causing interference, restraint, and
coercion proscribed by the Act. I shall accordingly recommend that it cease and
desist therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
The employees herein, I have found, were engaged in a concerted activity which
amounted to a strike, and because of it, and while on strike, their employment was
terminated by the strategem of canceling their truck leases.
I shall recommend that Respondent be ordered to offer these employees reinstate-
ment to their former or substantially equivalent positions upon their individual uncon-
ditional request therefor. As this reinstatement requires the reexecution of individual
truck leasing agreements for the employees who own their trucks as well as drive
them I would specifically recommend that in such cases Respondent reexecute, upon
request for reinstatement, the specific truck lease agreement in force when Respond-
ent discriminatorily canceled it on November 19, 1962.
Ordinarily a discriminatorily discharged employee is entitled to backpay from the
date of his discharge. However, in cases where employees are discharged while on
strike, it is the Board's established practice to award backpay from the date on which
the employees make an unconditional application for reinstatement.24 Here there is
credible evidence 25 that Respondent, after having discriminatorily discharged the
employees by canceling their truck leases, invited them individually to return to work
by renewing the then existing lease, thus effectively tolling the running of further
backpay for these employees. Absent from those "invited" to return to work were
A. W. Walters, C. W. Gravette, and Dawson Tucker,26 whom Vice President Size-
more refused to recall because Respondent considered them to be the ringleaders of
a conspiracy to close the Company (supra, footnote 23). In any event, neither these
named employees nor any of the others whose leases were canceled have been shown
to have either unconditionally applied for reinstatement or as to driving employees,
excluding those named above, to have accepted Respondent's offer to resume work.
Moreover, all of these employees thereafter engaged in a strike called by the Union,
and actively picketed at Respondent's establishment, beginning on January 12, 1963,
protesting Respondent's failure to accept the Union's contract proposals.27 Thus the
record as presently constituted clearly establishes that up to and through the January
1963 strike none of the employees involved herein had ever abandoned the position
originally taken when they withheld their trucks and services on November 16, 1962;
nor had they ever thereafter unconditionally applied for reinstatement. In this
respect Respondent sought to show that further efforts were made to secure the return
of these employees to work after the settlement of the January 1963 strike, and that
certain employees had sought reinstatement at this time. Because I believe the intro-
duction of such evidence would unnecessarily confuse the November 16 concerted
activity with a subsequent strike with which we are not at all concerned, and because
such evidence more properly is relevant to the compliance stages of this proceeding
I rejected it. It is conceivable, however, that at some time after the settlement of
cancellation of truck leases was unequivocal and the Company's letter of December 31 to,
Its employees clearly stated that it would not be willing to lease to the men who quit
on November 15 or permit them to drive. Thus there is nothing in either action to suggest
that the Company meant only to "Intimidate the strikers into returning to work" (Asso-
ciated Wholesale Grocery of Dallas , Inc., 119 NLRB 41, 42), or that It was merely apply-
Ing "pressure tactics" (Englewood Lumber Company, 130 NLRB 394, 396).
u Dunkirk Broadcasting Corporation, et al., 120 NLRB 1588, 1593.
25 The credited, undenied testimony of President Conaway and Vice President Sizemore.
2' A. R. Evans, whom I have eliminated for other reasons (supra), was also named as
a "troublemaker."
27See Local 612, International Brotherhood of Teamsters , etc. (Deaton Truck Line,
Inc.), 146 NLRB 498.
DEATON TRUCK LINE, INC. 1549
the January 1963 strike the employees who had withheld their trucks and services in
November 1962 may have unconditionally applied for reinstatement . I have included
.herewith as Appendix A the names of those whose reinstatement has been recom-
mended and for whom there is a possibility of backpay award.
For reasons previously detailed, C. E. Evans, L. W. Roberson, W. J. Henderson,
and A. R. Evans are not entitled to relief under the provisions of the Order recom-
mended herein.
RECOMMENDED ORDER
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, I recommend 28 that Deaton Truck Line, Inc., its
officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discriminating against its employees by the cancellation of truck leasing agree-
ments because said employees engaged in concerted activity protected by Section 7
of the National Labor Relations Act.
(b) In any like or related manner interfering with, restraining , or coercing its
,employees in the exercise of rights guaranteed them by Section 7 aforesaid.
2. Take the following affirmative action which it is found will effectuate the poli-
cies of the Act.
(a) Upon their unconditional request therefore offer employees listed in the
attached Appendix A immediate and full reinstatement to their former or substan-
tially equivalent positions in the manner set forth in the section of the Trial Exam-
iner's Decision entitled "The Remedy."
(b) Make whole employees listed in Appendix A for any loss of pay they may
have suffered by reason of Respondent's discrimination against them in the manner
set forth in the section of the Trial Examiner's Decision entitled "The Remedy."
(c) Post at its place of business in Birmingham, Alabama, copies of the attached
notice marked "Appendix B." 29 Copies of such notice, to be furnished by the
Regional Director for Region 10, shall, after having been duly signed by Respondent's
representative, be posted by it immediately upon receipt thereof, and be maintained
by it for a period of 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 10, in writing, within 20 days from
receipt of this Decision, what steps Respondent has taken to comply herewith 30
23 In the event that this Recommended Order be adopted by the Board, the word
"Recommended" shall be deleted from its caption and wherever else it thereafter appears
and for the words "I Recommend" there shall be substituted, "the National Labor Rela-
tions Board hereby orders."
40 In the event of Board adoption of this Recommended Order, the words "a Decision
and Order" shall be substituted for the words "the Recommended Order of a Trial Exam-
iner" in the notice. In the further event of enforcement of the Board's Order by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order".
30In the event of Board adoption of this Recommended Order, this provision will be
modified to read: "Notify said Regional Director, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
Hollis Berry W. L. Howton E. P. Satcher, Jr.
Berd S. Butler W. J. Kelley Nick Sergio
F. J. Cain Russell Land J. M. Sides
J. O. Cheatwood A. S. Love J. T. Stephens
W. L. Curlee Earl Lucas W. L. Stewart
William A. Davis Leroy Lucas D. B. Tucker
W. M. Evans C. A. Morgan Ira Waldrop
Sterling E. Gable Fred Merrell A. W. Walters
L. R. Graves W. A. Pierce Sam Watkins
C. W. Gravette M. P. Pittman Leon Weaver
M. E. Hall Harold H. Roberts Lloyd Weaver
Ralph Robinson
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT discriminate against our employees by canceling their truck
lease agreements because they engage in or have engaged in concerted activities
protected by the National Labor Relations Act.
WE WILL, upon their unconditional request, reinstate those employees listed
in Appendix A, terminated for engaging in concerted activities , by reexecuting
the truck lease agreement then in force, in the manner set forth in the section
of the Trial Examiner 's Decision entitled "The Remedy."
WE WILL make whole those employees listed in Appendix A for any loss of
pay they may have suffered because of our discrimination against them in the
manner set forth in the section of the Trial Examiner' s Decision entitled "The
Remedy."
All our employees are free to become or remain , or to refrain from becoming or
remaining , members of Local 612, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America, or any other labor organization.
DEATON TRUCK LINES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
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, 528 Peach-
tree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone No. 876-
3311, Extension 5357, if they have any question concerning this notice or compliance
with its provisions.
Valley Forge Flag Company and International Ladies' Garment
Workers' Union , AFL-CIO. Cases Nos.. -CA-3305 and 4-CA-
3381. June 15,1965
DECISION AND ORDER
On November 30, 1964, Trial Examiner Sidney Sherman issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion . He further found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint and recommended
that such allegations be dismissed. Thereafter, Respondent filed a
motion to reopen hearing and record for the taking of additional
testimony,' exceptions to the Decision, a brief in support of the excep-
i Subsequent to the hearing and Issuance of the Trial Examiner ' s Decision, Respondent
filed a motion to reopen the record to permit It to adduce evidence that George Liberman,
one of Respondent 's directors , who testified on behalf of the General Counsel, had interests
adverse to those of his brothers , who were directors and officers of Respondent. The
General Counsel and the Charging Party opposed the motion on the grounds , inter elia,
that the evidence sought to be adduced would only be cumulative , as the record con tains
152 NLRB No. 150.