Great Southern Trucking Co.

National Labor Relations Board - Board Decisions

Aug 26, 1941

34 N.L.R.B. 1068 (N.L.R.B. 1941)

In the Matter of GREAT SOUTHERN TRUCKING COMPANY, CHARLOTTE
BRANCH and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, STABLEMEN AND HELPERS OF AMERICA, LOCAL #71
Case No. C-1488.-Decided August .6, 1941
Jurisdiction : freight trucking industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements; questioning as to
union membership.
Discrimination: discharge of 39 employees because they engaged in strike fol-
lowing refusal to bargain; discharge of non-union employee because of belief
he had gone on strike ; allegations as to one employee dismissed.
Collective Bargaining: union's majority undisputed-refusal to bargain in good
faith : refusal of officer with authority to meet and negotiate ; negotiations
through supervisory employees without authority ; advancing active union
committee member to supervisory position after strike threatened; majority
not destroyed by discharge and replacement of strikers.
Remedial Orders : order to bargain collectively; employees discriminated against
ordered reinstated with back pay.
Unit Appropriate for Collective Bargaining : truck drivers, truck drivers' help-
ers, warehousemen (platform men), checkers, watchmen, and garagemeh, ex-
cluding mechanics, clerical employees, supervisory employees with authority to
hire and discharge, and 4 temporary employees.
Mr. Charles Y. Latimer, for the Board.
Mr. Thomas P. O'Brien and Mr. Henry Kaiser, of Washington,
D. C., for the Union.
Guthrie, Pierce d Blakeney, by Mr. Whiteford S. Blakeney, of
Charlotte, N. C., and Milam, Mcllrvaine c Milani, by Mr. Donald A.
Carroll, of Jacksonville, Fla., for the respondent.
Mr. Louis Cokin and Miss Marcia HertzImark, of counsel to the
Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Brotherhood of Teamsters, Chauffeurs, Stablemen, and Helpers of
34 N. L. R. B., No. 116.
1068
GREAT SOUTHERN TRUCKING COMPANY 1069
America , Local #71,1 herein called the Union , the National Labor
Relations Board, herein called the Board , by the Regional Director for
the Fifth Region (Baltimore , Maryland ), issued its complaint dated
December 1, 1939, against Great Southern Trucking Company, Char-
lotte , North Carolina , herein called the respondent , alleging that the
respondent had engaged ' in and was engaging in unfair labor practices
affecting commerce , within the meaning of Section 8 (1), (3), and (5)
and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. Copies of the complaint and accompanying
notices of hearing were duly served upon the respondent and the
Union.
Concerning the unfair labor practices , the complaint alleged, in
substance , ( 1) that on or about April 10, 1939, and thereafter, the
respondent refused to bargain collectively with the Union as the ex-
clusive representative of its employees within an appropriate bar-
gaining unit; (2) that on or about September 6, 1939, the Union called
a strike in protest against the refusal of the respondent to bargain
with the Union and that the respondent then discharged and refused
to reinstate 36 named employees because they had gone out on strike;'
(3) that the respondent warned its employees to refrain from becom-
ing or remaining members of the Union and made remarks to them
intended to discourage their membership in the Union; (4) that on or
about March 1, 1939, the respondent discharged L. A. Justice, an em-
ployee of the respondent , because he joined and assisted the Union;
and (5 ) that by these and other acts the respondent interfered with,
restrained , and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On December 13, 1939, the respondent filed an answer to the com-
plaint in which it denied the allegations of unfair labor practices,
and alleged affirmatively that it refused to bargain with the Union at
all times subsequent to September 8, 1939, for the reason that it would
have been illegal to do so.
Pursuant to notice , a hearing was held from December 14 to 21,
1939 , at Charlotte , North Carolina , before Webster Powell , the Trial
Examiner duly designated by the Chief Trial Examiner . The Board
and the respondent were represented by counsel , the Union by a gen-
eral representative ; all participated in the hearing . Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties.
On December 18, 1939 , during the course of the hearing , the Board
issued an amendment to complaint against the respondent alleging
1 Incorrectly designated as "International Brotherhood of Teamsters , Chauffeurs , Stable-
men, and Helpers , Local #71" in the Intermediate Report.
The names of these employees appear in Appendix A.
1070 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
that the respondent had engaged in and was engaging in further
unfair labor practices affecting commerce, within the meaning of
Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. Counsel
for the respondent waived the notice of an amendment required by the
Rules and Regulations of the Board. The amendment to complaint
alleged, in substance, that the respondent on or about September 8,
1939, discharged and refused to reinstate three employees at its High
Point terminal because they had gone out on strikes and that on or
about September 8, 1939, the respondent discharged M. O. Rainwater,
an employee, because he assisted and joined the Union.'
At the commencement of the hearing counsel for the respondent
moved to dismiss the complaint on the ground that the Board lacks
jurisdiction over the respondent. At the close of the Board's case,
and at the close of the hearing, counsel for the respondent moved to"
dismiss the complaint and amendment to complaint on that ground
and the further ground that the evidence adduced at the hearing
failed to establish any violation of the Act. The Trial Examiner
reserved rulings on these motions.5 The motions are hereby denied.
At the close of the hearing counsel for the Board moved to amend
the pleadings to conform to the proof. The motion was granted.
During the course of the hearing the Trial Examiner made several
rulings on other motions and on objections to the admission of evi-
dence. The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings
are hereby affirmed.
On February 7, 1940, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon all parties, finding that
the respondent had engaged in and was engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 (1)
and (3) and Section 2 (6) and (7) of the Act, and recommending that
the respondent cease and desist therefrom and take certain specified
affirmative action to effectuate the policies of the Act. The Trial
Examiner recommended that the complaint be dismissed is so far
as it alleged that the respondent had refused to bargain collectively
with the Union and had discriminated against the striking employees
and L. A. Justice. On March 1 and 6, 1940, respectively, the respond-
ent and the Union filed exceptions to the Intermediate Report. On
February 20, 1940, the Union requested oral argument before the
Board. , On March 11, 1940, the respondent filed a brief which the
Board has considered.
a These employees are listed in Appendix A
* On January 10, 1940, the respondent filed an answer to the amendment to complaint
in which it denied the allegations contained therein.
G In his Intermediate Report the Trial Examiner passed on the matters raised by the
motions, but he made no specific rulings on the motions
GREAT SOUTHERN TRUCKING COMPANY 1071
Pursuant to notice, a hearing for the purpose of oral argument was
held before the Board on May 16, 1940, in Washington, D. C. The
respondent and the Union appeared by counsel and participated in the
argument. The Board has considered the exceptions of the respond-
ent and the Union and, in so far as the exceptions are inconsistent
with the findings, conclusions, and order set forth below, finds no merit
in them.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, a Florida corporation with its principal office in
the city of Jacksonville, Florida, maintains offices and warehouses in
the States of Georgia, Florida, Tennessee, and North Carolina, where
it is engaged in the business of hauling freight by motor truck. This
proceeding is concerned primarily with employees at the respondent's
terminal at Charlotte, North Carolina.
In 1938 approximately 80 per cent of all the freight transported
from the Charlotte terminal was transported to destinations outside
the State of North Carolina. The revenue received from handling
freight at the Charlotte terminal in 1938 amounted to approximately
$75,000. The respondent employs approximately 60 employees at its
Charlotte terminal.
H. THE ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Stablemen,
and Helpers of America, Local #71,, is a labor organization affiliated
with the American Federation 'of Labor. It admits to membership
employees of the respondent at its Charlotte terminal.
HI. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The Union began its organizational efforts at the Charlotte plant
of the respondent about October 1938. At the outset the respondent
sought to undermine the Union by discrediting its leaders and mini-
mizing the benefits to be gained from it. J. R. Mathews, who was
then superintendent of the respondent's North Carolina division,
summoned the employees at the Charlotte terminal to a meeting on
January 22, 1939, for the purpose of discussing the employees' dis-
satisfaction with the method of work distribution. This meeting
was attended by practically all the employees who were then in
Charlotte, and was addressed by Mathews and Frank Curran, traffic
1072 DECISIONS O` NATIONAL LABOR RELATIONS BOARD
manager at the Charlotte terminal. Several employees testified that
Mathews stated at this meeting that he saw no reason why the em-
ployees should join a union, that he did not believe that it would
benefit them, and that the employees should have their own union to
which everyone could belong. They further testified that Mathews
stated, "You aren't doing anything except giving your money to
people who are driving around in big fine cars, you all work hard for
your money and I don't see any reason for giving them your money.
The union is all right if you will just use your heads about it."
Hilliary Houston, an employee, testified that Mathews also stated
that the union hall was only used as a place to drink liquor and
"shoot craps." Mathews admitted telling the employees to "use
their heads and proceed in their choosing of a union without causing
anybody any grievance . . ." He did not deny the above state-
ments attributed to him, which we accept as true. Curran admitted
that he told the employees at this meeting that Akron, Ohio, was at
one time the largest rubber manufacturing center in the United
States but that due to the activities of unions it had become a "ghost"
city. He also testified that he had referred to the "difficulties that
the men on strike in Gaston County textile mills had gotten into,"
and that he stated that "we don't want any such difficulty." He
testified further that he told the employees that he had no objections
to the Union but added, "I do wish in the conduct of your business
with the unions, you would use your head." Several employees tes-
tified that Curran further stated that "The union would do nothing
but bring dagoes, Jews, and wops that couldn't speak the English
language and cause trouble." Curran did not deny this statement
attributed to him and we find that he made it.
- The respondent further strove to impress upon the employees the
futility of joining or remaining with the Union. Thus, Cecil B.
Helms, an employee, testified that during a conversation with
Mathews at the respondent's Atlanta terminal on or about February
2, 1939, Mathews asked him whether he wanted to be the "kingfish"
in the Union and that he replied that he had solicited all the mem-
bers he could for the Union. Mathews then stated that he -was
aware of that but that "the boys were on the wrong side of the fence
and he couldn't do anything for them so long as they were wrong."
Mathews denied the foregoing statements attributed to him by Helms.
The Trial Examiner who observed the demeanor of the witnesses
at the hearing refused to credit Mathew's denial. On the basis of
the Trial Examiner's finding, and in view of the entire record, we
find that Mathews made the statements attributed to him by Helms.
Robert H. Springs, an employee, testified that on July 20, 1939,
Curran told him that the employees had made "a terrible mistake"
0
GREAT SOUTHERN TRUCKING COMPANY 1073
in joining the Union, that he- "never hated anything so bad in his
life," and that there were going to be some good positions vacant
with the respondent in the near future. Springs further testified
that Curran asked him to persuade the respondent's employees to
withdraw from the Union. Although Curran was called as a wit-
ness by the respondent and testified at the hearing, he did not deny
this testimony and we accept it as true.
Herman Rainwater, an employee, testified that on September 3,
1939, Shaw E. Pender, agent in charge of the employees at the
Charlotte terminal, asked him if the men were not on a "ball of fire"
about the Union, and added, "Well you don't know the old man like
I do, he will just quit this thing . . . Don't you boys do anything
that will hurt you." Rainwater then asked Pender if L. A. Rauler-
son, president of the respondent, was coming to Charlotte the next
week, to which Pender replied, "No, he isn't coming up here as long
as you boys is in that union mess." Pender denied making the above
remarks but admitted, that he had told Rainwater that he was a "darn
fool" to allow the Union' to mislead him. The Trial Examiner did
not credit Pender's denial, nor do we, and we find that Pender made
the statements attributed to him by Rainwater.
Dolph C. Black and Helms, employees of the respondent, testified
that on the day of the commencement of the strike 6 at Charlotte,
Harry Burnett, dispatcher at the respondent's Atlanta terminal, noti-
fied the employees there that the Charlotte employees had gone out
on strike and stated, "Well I hate to hear that, I don't believe you
boys will ever get anywhere with it. I have been working with
the company a good many years and I know Mr. Raulerson, and
I know before he will recognize the union and sign a contract he
will close and retire on a million dollars." Although Burnett denied
these remarks, he testified that he had stated that he was sure Rauler-
son would not sign a contract which had been submitted to the
respondent by the Union. In view of Burnett's admission as to
the above incident, we find, as did the Trial Examiner, that Burnett
made the remarks attributed to him by Black and Helms.
Mark R. Smith, an employee hired by the respondent after the '
strike at the respondent's Charlotte terminal, testified that when he
applied for employment on September 11, 1939, Pender asked him
if he was a union member and what he thought about unions. Smith
replied that he was not a union member and that he "didn't think
much" of unions. Pender then called Smith's former employer
Brinson, on the telephone and, in Smith's presence, inquired whether
Smith belonged to the Union. Smith further testified that Pender
Discussed in Section B, infra.
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated to him that if he "would string along with them rind didn't
mess with the union he would have a job as long as the company
had one, that the union wasn't any good and that,it was more or
less a racket and was causing people to go hungry in the South . . ."
Pender denied this testimony and stated that he had merely checked
up with Brinson concerning Smith's ability. We find, as did the
Trial Examiner, that Pender made the statements attributed to him
by Smith.
Rex Carter, who was employed by the respondent as a truck driver
at its High Point, North Carolina, terminal, testified that he was
present on an occasion during the summer of 1939 when McLaughlin,
a truck driver at the Charlotte terminal, asked Charles R. Cook, the
agent at High Point, his advice as to joining the Union. Cook re-
plied that if McLaughlin were working "around there that he would
fire him . . . that he could think of a hundred reasons every day to
fire a man and yet not to say he fired him for joining the Union."
Carter testified further, "He said that unless it was a company union
or something like that, he said that this union we boys . . . of course,
he 'didn't know I was a member . . . belonged to was just a wild
cat union and continually fighting with other unions." McLaughlin
did not join the Union. He and Cook denied that the latter made
the statements above quoted. Cook testified that after the strike had
started he made a statement "that if that was the gratitude and that
was the appreciation that the boys in Charlotte were showing to Mr.
Raulerson for all he had done for them, they didn't need a job." In
view of all the evidence, we credit Carter's testimony of the state-
ments made by Cook.
We find that the respondent, by the conduct of its supervisory em-
ployees in interrogating employees as to their union affiliation, by
its attempts to discourage membership in the Union and to induce
employees to withdraw from the Union, and by the action of its
supervisory employees in making disparaging remarks about the
Union and its,leaders, as set forth above, has interfered with, re-
strained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
B. The refusal to bargain
1. The appropriate unit
The Union contends that the truck drivers, truck drivers' helpers,
warehousemen (platform men), checkers, watchmen, and garagemen
at the respondent's Charlotte terminal, excluding mechanics, clerical
employees, and supervisory employees with authority to hire and
discharge, constitute a unit appropriate for the purposes of collective
GREAT SOUTHERN TRUCKING COMPANY 1075
bargaining. The Union at the hearing urged the inclusion in the
unit of four temporary employees. The respondent makes no conten-
tion with respect to the appropriate unit except that it contends that
the four temporary employees should be excluded therefrom. Thesa
four employees had worked for the respondent respectively, 3 hours,
3 days, and in the case of two of them intermittently for a period of
3 weeks prior to the strike. There was no testimony that the respond-
ent intended to employ these workers on a permanent basis. We
find that the four temporary employees are not in the unit.
' We find that the truck drivers, truck drivers' helpers, warehouse-
men (platform men), checkers, watchmen, and garagemen at the
respondent's Charlotte terminal, excluding mechanics, clerical em-
ployees, supervisory employees with authority to hire and discharge,
and the four temporary employees, at all times material herein con-
stituted and that they now constitute a unit appropriate for the pur-
poses of collective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of employment and that
said unit insures to employees of the respondent the full benefit of
their right to self-organization and to collective bargaining and
otherwise effectuates the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
A list of the respondent's employees introduced in evidence shows
that in the months of April, August, September, and December 1939,
the respondent employed approximately. 37 employees in the appro-
priate unit. It is undisputed that at all times between April 10 and
September 6, 1939, a minimum of 28 employees in the appropriate
unit were, members of the Union. The first date upon which we
below find a refusal to bargain is May 6, 1939.
We find that on April 10, 1939, and at all times thereafter, the
Union was the duly designated representative of a majority of the
employees of the respondent in the appropriate unit and that by
virtue of Section 9 (a) of the Act, was on April 10, 1939, and at all
times thereafter has been, the exclusive representative of all employ-
ees in such unit for the purposes of collective bargaining.
3. The refusal to bargain
The first attempt by the Union to bargain was made on April 4,
1939, at which time James H. Fullerton, secretary of the Union, wrote
to L. A. Raulerson, president of the respondent, as follows :
I am inclosing here a copy of a Proposed Wage and Working
Agreement, approved by Local Union No. 71 of Charlotte N. C.
of which Ninety percent of your Drivers, Helpers and Ware-
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
housemen of Charlotte are members. And, which has been sub-
mitted to and approved by the Officers of the International
Brotherhood of Teamsters-Chauffeurs-Stablemen and Help-
ers. It is our desire and request that you arrange to meet with
our committee for the purpose of discussing this proposition and
work out an agreement that will be satisfactory to both parties
concerned.
We believe that by sitting in conference with one another in a
spirit of Co-operation and consideration that this can be done,
without disturbing the relationship that exists at present by both
parties herein concerned.
Hoping you will notify us of the earliest date possible that we
might meet with you or your representative for such negotiations.
On April 10, 1939, Raulerson replied to Fullerton as follows :
Upon return to my office this morning, I find for acknowledg-
ment and reply, yours of the 4th.
Permit me to say in the beginning that my attitude towards
my help has always been to try to treat them as I would like
to be treated if on the other side ofthe fence.
It is true that the copy of the proposed contract which you have
submitted, offers little in the way of a basis for negotiations in
that it is so impossible to exist under it. I am, however, refer-
ring the same to our Charlotte Attorney, Mr. Blakeney of the
firm of Guthrie, Pierce & Blakeney in the Johnston Building,
Charlotte, N. C., and to our Superintendent in that territory,
Mr. J. R. Mathews, who will be glad to go over the matter with
you.
Our Legislature just convened on the 4th for a sixty-day session;
I have been practically out with an unenjoyable case of flu for
three weeks, and for these reasons ask that you first take this
matter up with the above named gentlemen. I shall be glad to
come to Charlotte when the same is necessary.
Following this exchange of letters,. Fullerton and Mathews ar-
ranged a conference which was held in the office of Whiteford S.
Blakeney, attorney for the respondent, on May 6. The Union was
represented by its negotiating committee, consisting of Fullerton,
H. W. Houston, Smith, Hawks, and Kirkpatrick, and the respondent
by Blakeney, Mathews, and Curran. Fullerton asked Blakeney and
Mathews if they had authority to sign an agreement, to which they
replied that they did not but that they had authority to discuss
the proposals advanced by the Union. Houston testified without
contradiction that at one point in the conference Curran became
GREAT SOUTHERN TRUCKING COMPANY 1077
angry and stated that "It looks like the damn union wants to run
the thing," and that the only provision in the proposed contract to
which the respondent's representatives would agree was one provid-
ing that an employee who failed to report for work should lose a day's
time. The proposed contract was discussed item by item. Mathews
stated that he was not in favor of the closed-shop provision and that
the provision for absolute seniority could not be complied with. He
testified that Fullerton and Houston said that the contract contained
several items which were included merely for purposes of negotiation.
Blakeney testified that Hawks was the chief proponent of the closed-
shop provision, and that Fullerton and Houston talked mostly in
favor of the seniority clause. After 4 hours of discussion the con-
ference adjourned with an agreement to meet at an indefinite date.
On June 5, 1939, Edward H. Garrett replaced Mathews as super-
intendent of the respondent's Carolina division. Shortly thereafter
the respondent announced that employees would be given a week's
vacation with pay. The Union was not consulted in this connection,
although its proposed contract contained a provision for such vaca-
tions.7 Fullerton communicated with Garrett early in June and
they set June 24, 1939, for a conference. On that date the union com-
mittee and Harold L. McCrorie, its business agent, met with Garrett
and Blakeney in the latter's office.
Fullerton testified, and Blakeney did not deny, that Blakeney told
him that Garrett had "quite a bit more authority" than Mathews.
During the discussion of the contract Fullerton asked Garrett if he
had authority to sign a contract with the Union and, when Garrett
replied that he did not, Fullerton stated that they were wasting time
attempting to' negotiate with representatives who lacked such
authority and asked that Raulerson come to Charlotte to negotiate.
Garrett suggested that they continue and determine upon what pro-
visions the parties could agree. He stated that he was personally
opposed to a closed .shop and that, although he was in favor of a
seniority policy, some qualifications of the proposed clause were neces-
sary. He stated that he did not approve of the minimum wage scale
proposed by the Union. The union committee called attention to the
fact that employees had, for some time past, been promised a 10-per
cent wage increase but had never received it. Hawks again took
the lead in the discussion concerning a closed shop.
After the proposed contract had been discussed at length and the
parties had reached an accord as to some of its provisions, Garrett
suggested that he revise the Union's proposal in accordance with the
7 See Matter of Inland Lime and Stone Company and Local No. 377 of the International
Union of Mine, Molt and Smelter Workers ( C I. 0.) 24 N. L. R. B . 758, enf'd Inland
Lime and Stone Company v. National Labor Relations Board, 119 F. (2d) 20 (C. C. A. 7),
451269-42-vol 34-69
1078 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
suggestions agreed upon, and that he then present it to the Union for
its approval. It was agreed, however, that the Union would submit
the revised contract to the respondent as its proposal. The Union
insisted that the closed shop, seniority, and minimum wage provisions
remain, in the draft. Garrett promised that, if Raulerson found it
inconvenient to come to Charlotte, he would take the draft to him in
Jacksonville. During the week of July 3, 1939, Garrett turned over
the contract as revised to the Union and on July 17 was notified by
the Union that it had approved the changes. Garrett wrote to
Raulerson and inquired whether he should bring the proposal to him,
but Raulerson replied that he would soon be in Charlotte. Fullerton
testified that when he heard that Raulerson was to be in Charlotte
he requested Garrett to arrange a conference and that Garrett said'
that he would attempt to do so. Garrett denied that Fullerton made
such a request. The Trial Examiner, while crediting Fullerton's
testimony, found that no "serious effort" had been made to secure a
conference with Raulerson on July 20. We do not agree with the
Trial Examiner's finding in this respect and we find that Fullerton
requested Garrett to arrange a conference with Raulerson.
On July 20, 1939, Raulerson came to Charlotte and met with
Blakeney and Garrett. They related to him in detail the status of
the negotiations and presented the Union's proposal to him. Rauler-.
son stated definitely that he would not agree to the closed shop and
seniority provisions of the proposed contract. He stated that he
wished to consider further the other provisions. The Union was not
informed of Raulerson's presence in Charlotte, although during the
visit Raulerson met and talked with Houston, one of the committee
members, in the Charlotte terminal. Houston said nothing about a
desire on the part of the Union to negotiate directly with Raulerson,
and later in the day, when Houston asked Mason, the dispatcher,
where Raulerson was, he was informed that Raulerson had already
returned to Jacksonville.
On July 22, 1939, the respondent posted a notice in its Charlotte
terminal announcing pay increases for its drivers and helpers, check-
ers, shop mechanics and helper, warehousemen, and night watchman.
The new schedule of wages provided for a minimum of $25 a week
for certain drivers and $27.50 a week for others. The Union's pro-
posal provided for a minimum of $30 per week for all drivers.
Hilliary Houston, warehouse foreman, testified that the drivers had
received $24 a week prior to the increase on July 22. That same
day Garrett wrote to Fullerton as follows :
I have been trying to get you over the telephone this morning
but have not been able to do so and am, therefore, writing you
instead. ,
GREAT SOUTHERN TRUCKING COMPANY 1079
Mr. Raulerson was in town Thursday of this week and he and I
went over in detail the last set of Proposals submitted by the
Union.
Mr. Raulerson stated definitely that he would not agree to a
number of these proposals . As to various other proposals, he
stated he wanted to consider further and that he would let me
have his answer in detail about them later on.
We went over in detail another matter which he and I lave
been discussing for some time , that is, the question of giving the
employees here a raise in their pay. Ever since I came here I
have felt that the men here deserved and ought to have a general
raise, and Mr . Raulerson has felt somewhat the same. So when
he was here we got down to figures and details and worked out
a schedule of raises in pay, which we are putting into effect as
of this week. We are notifying the men of these raises today.
I wanted to get in touch with you on these points because it
was understood at the time of our last meeting, as you will recall,
that we would find out from Mr. Raulerson his attitude about
these matters and I, therefore, wanted to let you know the result
of his visit here this week.
The parties met again on July 29 pursuant to a request by Fuller-
ton. At this meeting Garrett and Blakeney apprised the union com-
mittee of Raulerson's position as to the closed -shop, seniority, and
minimum-wage clauses in the contract and stated that Raulerson
wished to submit counterproposals on other .subjects. Blakeney in-
quired of the union committee whether or not the negotiations should
be considered at an end in view of Raulerson 's definite refusal to
agree to several of the Union's proposals. The committee replied
that it did not consider the negotiations at an end and that, notwith-
standing Raulerson 's definite refusal to consider the provisions for a
closed shop , seniority , and the minimum wage, it still desired that
Raulerson come to Charlotte. According to Blakeney's testimony, he
asked the committee,
Well , what is the use of Mr. Raulerson 's coming here at this
point if you gentlemen say you are not going to sign a contract
that does not have closed shop and absolute seniority in it, and
Mr. Raulerson says on the other hand that he isn't going to sign a
contract that does have it in?
Fullerton, Kirkpatrick, and Houston replied, "Well, we haven't heard
him say that." Blakeney stated, "Well, I am telling you that he has
said it," to which the committee answered , "Well, we want to see it
in writing." The conference ended with the understanding that
Blakeney would write to Raulerson requesting him to state his position
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in writing. No arrangement was made as to what would be done
thereafter. On July 31, 1939, Blakeney wrote to Raulerson, pursuant
to the understanding, as follows :
Mr. Garrett and I had a meeting Saturday afternoon with a
committee of the local Union.
We told the committee that we had gone over their proposed
contract with you and that you were not yet ready to give a
definite answer as to all the provisions of the proposed contract,
but that you did state definitely that you could not agree to the
provisions of Section 1 providing for a closed shop, and to the
provisions of Section 2 providing that seniority should govern
without variation or exception in all matters pertaining to vacan-
cies or changes in positions or earning opportunities. The com-
mittee then requested that we ask you to come to Charlotte and
discuss the proposed contract with them, or that in any event, you
write them as to whether you had definitely made up your mind
that you could not agree to the two sections of the contract men-
tioned above. We then suggested that a letter from you to us
would serve just as well, and they agreed to that.
We will appreciate it, therefore, if you will let us hear_ from
you as soon as convenient, stating whether you can agree to the
provisions of the two sections of the proposed contract referred to
above, namely, the sections providing for the closed shop and
seniority.
Fullerton called Blakeney and Garrett several times thereafter to
inquire if any reply had been received to Blakeney's letter but was
told that Raulerson had not written. On August 16, 1939, Raulerson
wrote to Blakeney as follows :
I have received your letter of July 31.
As I have stated to the Union before, I am entirely willing to
negotiate with them relative to the terms of the contract which
they have proposed and if they desire, I will make arrangements
to come to Charlotte and discuss the matter with them. I have
studied the proposals submitted by them in detail and likewise
the discussions and negotiations between you and them and the
representatives of the Company there in Charlotte as reported to
me, and still have under consideration some of the items as pro-
posed by the Union. In the course of further negotiations on the
matter, I should also like to submit to the Union various provi-
sions which I wish to have incorporated in the contract.
With respect to the stipulations in the contract as proposed by
the Union providing for a closed shop and providing that
seniority shall govern without exception or variation as to all mat-
GREAT SOUTHERN TRUCKING COMPANY 1081
ters pertaining to changes or vacancies in positions or earning
opportunities, I cannot agree to these provisions as a part of the
contract. The many reasons why I cannot agree to these pro-
visions I have already communicated to you and you have, as I
understand it, in the discussions already presented these reasons
to the Union several times.
Fullerton testified that he called Blakeney again about August 21,
1939, inquired as to when Raulerson was coming to Charlotte, and
informed him that the employees were growing impatient and that
unless Raulerson came to Charlotte he would not be responsible for the
employees' actions. He testified that Blakeney replied that he had not
heard when Raulerson was coming and did not know. Blakeney testi-
fied that he was absent from Charlotte from August 18 to 23 and upon
his return immediately called Fullerton and relayed to him the con-
tents of Raulerson's letter of August 16 and that Fullerton made no
request for Raulerson's presence in Charlotte at that'time. The
Trial Examiner credited Blakeney's testimony as to what occurred
between August 18 and 24, 1939. However, Blakeney admitted that
Fullerton called him twice after July 31 and did not deny that in
one of these conversations Fullerton made the statements contained
in his testimony. Fullerton placed the date of the conversation as
"about August 21," and we da not believe that there is such an incon-
sistency as would necessitate our disbelieving Fullerton's testimony.
We find that he told Blakeney that unless Raulerson came to Charlotte
he would not be responsible for the employees' actions.
On August 31, 1939, Howard L. McCrorie, business agent of the
Union, approached Garrett and demanded that Raulerson be in Char-
lotte not later than September 2, 1939, to negotiate with the Union.
Garrett protested that this was an unreasonable demand and McCroria
then agreed to give Raulerson until September 6 at 6 p, in. to come to
Charlotte. Garrett stated that he was leaving Charlotte on a business
trip but that he would communicate with Raulerson and would defi-
nitely notify McCrorie upon his return on September 5, 1939, of
Raulerson's decision.
Garrett notified Raulerson on August 31 or September 1 that the
Union had set a definite deadline of September 6 for his appearance
at Charlotte. At that time Raulerson expected to appear in a court
proceeding at Jacksonville on September 5. He admitted that it
would have been possible for him to come to Charlotte during the
intervening week, but stated that Garrett informed him that he
(Garrett) was leaving for Knoxville and that "he had it all fixed up
until he got back there (to Charlotte)." Garrett testified that his
understanding with McCrorie was that Garrett would notify McCrorie
on September 5 as to when Raulerson could be in Charlotte. Raulerson
made no effort to be present in Charlotte between September 1 and 5.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 2, 1939, all the employees who were members of the
Union unanimously voted to go out on strike if Raulerson did not
appear in Charlotte by 6 p. in. on September 6. At about this time
Raulerson called Greer Hawks, one of the members of the Union's
negotiating committee and a driver on the Charlotte-Atlanta route,
and requested that,Hawks meet him in Atlanta. Raulerson testified,
"I discussed with him his employment with the company, warning him
when he first came in that under no circumstances would I discuss
anything with him by himself otherwise pertaining to the Union ... -
and I asked him if he would like to have a promotion by way of
making him an agent at Knoxville." Hawks replied that he would let
Raulerson know later his decision on the offer. He was thereafter put
to work in the office to learn the office routine and subsequently became
an agent at Dalton, Georgia. Hawks did not go out on the strike
called on September 6 and discussed below. On September 3, Pender
told Herman Rainwater that Raulerson was not coming to Charlotte
"as long as you boys is in that union mess."
On September 5, 1939, Garrett notified McCrorie that he had com-
municated with Raulerson and that Raulerson stated that he was
involved in a court proceeding which was pending in Jacksonville but
that he would definitely be in Charlotte on September 9 or preferably
on September 11 to discuss the contract with the Union. McCrorie
reiterated that September 6 at 6 p. in. was the "deadline." Garrett
succeeded in reaching Raulerson at Jacksonville the morning of Sep=
tember 6 and told him of the Union's final decision. Raulerson stated
that it was a physical impossibility for him to be in Charlotte that
afternoon as the court proceeding in Florida had been delayed, and
asked Garrett to inform the Union that he would definitely be in Char-
lotte on September 13 at 2:30 p. in. to negotiate with it. This mes-
sage was communicated to Fullerton and McCrorie by Blakeney prior
to 1 p. in. on September 6. Raulerson testified that at least by the
morning of September 6 he knew that the court proceeding was being
postponed until September 11, and admitted that he could have left
Jacksonville for Charlotte that day. Although he stated that he also
had an important engagement with the respondent's agent in Tampa
at that time, he did not elaborate concerning such engagement and
when asked whether he thought that was more important than the
threatened strike in Charlotte replied, "oh, no, I did not, but he (Gar-
rett) had already notified me that the deadline, was 6 o'clock that after-
noon and I couldn't get there." Raulerson made no attempt to arrive
in Charlotte until September 13.
On September 6, at 6 p. m., 36 employees at the respondent's Charlotte
terminal went out on strike. Three employees at the High Point ter-
minal struck in sympathy on September 9,1939 . Several striking em-
GRtAT SOUPIIERN TRUCKING COMPANY 10$3
ployees testified, and we find, that the strike was called for the purpose
of inducing Raulerson to come to Charlotte to negotiate with the
Union. Garrett requested the men at that time to complete their work
but they refused to do so. ,
Between 6 p. in. on September 6 and the afternoon of September 8,
1939, the respondent replaced all but one of the striking employees
and resumed normal operations. On September 8, after the new men
had been hired, the respondent posted on the bulletin board in its
Charlotte terminal a notice stating as follows :
To all men who have left their jobs and gone out on strike you
are hereby notified that you are discharged.
A letter containing the identical language was sent to each of the
striking employees.
On September 8 and 9, 1939, at the request of an agent of the Board,
conferences were held between representatives of the Union and the
company relative to an adjustment of the strike. At the suggestion of
an agent of the Board, the Union agreed to allow its striking members
to return to work if the respondent's officials would assure the Union
that Raulerson would come to Charlotte and engage in collective
bargaining. Blakeney then stated:
... Mr. Raulerson may not be able to take the men-back to work
if their jobs have already been filled with new men.
Nevertheless, Blakeney conveyed the proposal to Raulerson, who re-
plied that he preferred to maintain the status quo until he' arrived in
Charlotte on September 13, 1939.
On September 13, 1939, representatives of the Union and agents of
the Board met with Raulerson and Garrett in Blakeney's office. At
the commencement 'of the meeting Raulson read the following
statement :
The management of the Great Southern Trucking Company has
dealt with its employees in the utmost fairness and good faith.
In its relations and dealings with its employees, the Company has
done even more than the reasonableness required.
Despite this, a considerable number of men saw fit to quit their
jobs and go out on strike last Wednesday, September 6. If the
Company was to stay in business and if its operations were to go
on, it was necessary that new men be hired to replace those who
had quit their jobs. We have replaced the men who have left
their jobs and at the present time, the Company does not have
any jobs open.
If any of the men who left their work and went out on strike
now or hereafter desire to go back to work for the Great Southern
Trucking Company, we will be glad to consider their applications
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if and when vacancies occur, and we will do so impartially and
without discrimination against the men who have gone out on
strike and without being influenced by the fact that they belong
to the union.
Our information is that the Union does not claim to 'represent
a majority of the men who have replaced those who went out
on strike. This being true, it is our understanding that we are
not required, nor indeed permitted, by law to engage in collective
bargaining at the present time.
Immediately after the reading of this statement, an agent of the
Board requested Raulerson to "sit down and discuss the situation with
the representatives of the Union." Raulerson replied, "I stand on the
statement I have just read," and left the meeting. No further attempts
have been made by either the Union or the respondent'to renew
negotiations. The Union was actively engaged in picketing the
respondent's Charlotte terminal at the time of the hearing.
Conclusions with respect to the refusal to bargain
The Trial Examiner, in finding that the respondent had not re-
fused to bargain in good faith, concluded that "at no time prior to
August 31, 1939, did the Union, through any of its members, insist
upon the presence of Raulerson in Charlotte for the purpose of ne-
gotiating a contract." We do not agree with the conclusion of the
Trial Examiner. We are of the opinion that the record clearly shows
that the respondent, while attempting to give the appearance of
bargaining, in fact did not bargain in good faith with the Union.s
True, its representatives met with those of the Union and discussed
the proposed contract; but they were powerless to agree to anything.
Raulerson, the one person who had authority to make the confer-
ences more than an interchange of ideas, failed to attend the meetings,
although, as the Trial Examiner found, the Union representatives
during each conference expressed a desire that Raulerson come to
Charlotte. Moreover, when Raulerson did come to Charlotte on July
20 he made no effort to notify the Union of his presence there or
to arrange a conference although such conference had theretofore
been requested by the Union. We are unable to understand the- dis-
tinction sought to be drawn between "requesting" and "demanding"
Raulerson's presence. He had stated that he would not agree to
At the hearing the respondent's president, L. A. Raulerson, testified as follows :
Q. Are you willing to sit down and bargain with the Union's
A. With my employees ; yes.
s s . c r w s
Q You are willing to sit down and bargain with the Union in Charlotte's
A. No. I am willing to sit down and bargain with my employees and the Union,
If they represent them.
.GREAT SOUTHERN TRUCKING COMPANY 1085
certain clauses; and he refused to appear so that an effort to convince
him might be made by the Union. Moreover, although the union
committee stated that a contract without the closed-shop, seniority,
and minimum-wage provisions would be worthless, it is entirely pos-
sible that the Union might have changed its position. As stated by
the court in Globe Cotton Mills,9 ". . . the resistance in discussion
may have been only strategy and not a fixed final intention." That
the Union was serious in its requests is amply demonstrated by its
action, after 5 months of conferring with representatives powerless
to reach an agreement, in calling a strike.'0
The respondent's conduct during the negotiations with the Union
is further evidence of its desire to evade the duty to bargain. After
the conference with Mathews on May 6, 1939, the respondent granted
to its employees a ' week's vacation each year with pay. Although
the Union's proposed contract contained a clause providing for such
vacations, it was neither consulted about nor credited with this con-
cession. On July 22, 1939, the respondent granted wage increases
to certain of its employees-those for whom the Union sought to
bargain and the shop mechanics. Again, although the Union's pro-
posal contained a provision for wage increases, the respondent took
the action without discussing the question with the Union. It was
admitted that during the negotiations the Union's committee called
attention to the many promises of the respondent to grant wage
increases and that the wage provision of the proposed contract was
one of the points upon which there was disagreement. It is obvious,
and we find, that the intent of the respondent in granting increases
and vacations during the period of negotiation with the Union, but
in the absence of any agreement with it, was to demonstrate to em-
ployees that benefits could be secured without the intervention of the
Union." Moreover, such action indicated a lack of good faith on
the part of the respondent in bargaining with the Union since the
respondent had never made any counterproposal to the Union's re-
quested minimum wage provisions.
9 Globe Cotton Mills v. National Labor Relations Board, 103 F (2d) 91 (C. C. A. 5),
enf'g as mod . 6 N. L. R B. 461.
10 Matter of Westinghouse Air Brake Company and United Electrical Radio and Ma-
chine ' Workers of America, Local No 610, 25 N L R B. 1312, enf'd as mod , N L R B
v. Westinghouse Air Brake Co, June 12, 1941 (C. C. A. 3 ) ; Matter of Union Manufactur-
ing Company, Inc. and Textile Workers Union of America, 27 N L R B. 1300; Matter
of Agwilines, Inc. and International Longshoremen's Association, Local No. 1402, 2
N. L. R. B. 1, enf'd as mod , Agwilines, Inc. v. N. L. R B., 87 F. (2d) 166 (C. C A. 5)
11 Matter of Chicago Apparatus Company and Federation of Architects, Engineers,
Chemists and Technicians , Local 107, 12 N L. R. B 1002, enf 'd N L R B. v. Chicago
Apparatus Co , 116 F. (2d) 753 (C. C. A. 7 ), rehearing denied , January 27, 1941 ;
Matter of Whittier Mills Company and Silver Lake Company and Textile Workers Organ-
izing Committee, 15 N. L. R B 457, enf'd N. L. R. B. v. Whittier Mills Co., 111 F. (2d)
474 (C. C. A 5), rehearing denied June 11, 1940 See Matter of Inland Lime and
Stone Company and Local No. 377 of the International Union of Mine, Mill and Smelter
Workers (C. I. 0.) 24 N. L. R B 758, enf' d Inland Lime and Stone Company v. N . L. R. B,
119 F (2d) (C. C. A. 7).
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition, the respondent's attitude and intention with respect
to the negotiations were demonstrated by the statement of Pender,
agent at the Charlotte terminal, on September 3 that Raulerson "isn't
coming up here as long as you boys is in that union mess," made after
numerous requests that Roulerson attend conferences and after the
demand by the Union on August 31. This statement was a clear
indication to the Union that the respondent had no intention of
bargaining in good faith and that any apparent collective bargaining
was mere pretense. It is also pertinent to note that although counter-
proposals which Raulerson said he wished to offer were mentioned
at the conference of July 29 and in his letter to Blakeney of August
16, 1939, they were never presented to the Union. In addition,
Raulerson's action in offering a supervisory position to Greer Hawks,
an active member of the negotiating committee of the Union, at a
time when Raulerson knew that the Union was demanding concrete
action by the respondent, adds to the belief that the respondent was
utilizing every possible method to avoid bargaining with the Union.
Raulerson's failure to come to Charlotte during the period between
August 31 or September 1 and September 5, when he was advised by
Garrett that the Union had set a deadline of September 6 and when
he knew that he could not be there on September 5 or 6 because of the
scheduled court proceeding further demonstrates that he was stalling.
We find that the respondent failed to bargain with the Union during
the period from August 31 to September 6.
We find that the respondent failed to bargain with the Union in
good faith, and that the strike which occurred on September 6, 1939,
was a labor dispute which was caused as a result of the unfair labor
practices of the respondent. We find further that Raulerson's fail-
ure to come to Charlotte between September 6 and 11, when the em-
ployees were on strike because of his failure to negotiate, constituted
a refusal to bargain with the Union. His conduct on September 13,
when he read a statement of his positio nand refused to engage in
further discussion, also clearly constituted a refusal to bargain. The
strikers retained their status as employees of the respondent within
the meaning of the Act, and continued to constitute a majority of the
employees within the appropriate unit 12 As we find below, the dis-
charge of the strikers was an unfair labor practice and they are en-
titled to reinstatement to their former positions. The dissipation of
the Union's majority through unfair labor practices cannot operate to
"Black Diamond Steamship Corp. v. National Labor Relations Board, 94 F. ( 2d) 875
(C. C. A. 2), enf'g 3 N. L. R. B . 84, cert. den . 304 U. S. 579 ; National Labor Relations
Board v. Stackpole Carbon Co ., 105 F. ( 2d) 167 (C. C. A. 3) mod and denying rehearing
6 N. L. R. B. 171 , cert. den. 308 U. S. 605 We find no merit in the respondent's
contention that it was relieved of the duty to bargain with the Union on September 13,
1939 , because the strikers had been discharged and replaced by persons who were not mem-
hers of the Union.
GREAT SOUTHERN TRUCKING COMPANY 1087
change the status quo and relieve the respondent of the duty to bargain
collectively 13
We find that at all times during the period between May 6 and
September 6, 1939, and at all times thereafter, the respondent refused
to bargain collectively with the Union as the exclusive representative
of its employees in an appropriate unit in respect to wages, rates of
pay, hours of employment,-and other conditions of employment and
has thereby interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed by Section 7 of the Act.
C. The discriminatory discharges
1. The striking employees
Thirty-six of the respondent's employees at its Charlotte terminal
went on strike September 6, 1939, as a result ofthe respondent's refusal
to bargain in good faith. On September 9, three employees at the
High Point terminal also went on strike. 4 Within 48 hours after the
commencement of the strike, the respondent replaced the strikers.
On September 8 it posted the notice referred to above and sent a copy
to each striker. At the conferences of September 8 and 9 the Union
agreed to allow the striking employees to return to work in. return for
a promise that Raulerson would negotiate, but Raulerson refused the
offer. At the conference on September 13 Raulerson read the state-
ment quoted hereinabove in which he declared that the strikers had
quit their jobs, that they had been replaced, and that there were no
vacancies available.
The striking employees were discharged by the respondent on Sep-
tember 8, 1939. No contention is made that the discharges were for
any reason ether than that the employees had gone on strike. Under
the Act the employees are accorded the right to engage in concerted
activity for their mutual aid and protection. The respondent may not
discriminate against them when they assert that right. The action of
the respondent in discharging the employees on September 8, 1939,
clearly constituted an unlawful discrimination because of their con-
certed activity 15 -
We find that the respondent, by discharging the 39 strikers listed in
Appendix A, discriminated in regard to their hire and tenure of em-
Is Matter of George P . Pilling t Son Co. and Dental, Surgical d Allied Workers Local
Industrial Union No. 119, affiliated uiith the C. I. 0., 16 N. L. R. B. 650 , enf'd , N. L. R. B.
v. George P. Pilling d Son Co., 119 F. (2d) 32 (C. C. A. 3).
u The 39 employees are listed in Appendix A.
15 Matter of El Paso Electric Company, a corporation and Local Union 585, Inter-
national Brotherhood of Electrical Workers; and N. P. Clay et al, 13 N. L. R. B. 213,
enf'g as mod ., El Paso Electric Co. v. N. L. R. B, 119 F. (2d) 581 (C. C. A. 5), rehearing
denied, May 31, 1941,
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployment, thereby discouraging membership in the Union and inter-
fering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
2. Molton O. Rainwater
Rainwater had been employed by the respondent for about 5 years
as a new car delivery man and during the last 2 years of his em-
ployment also as a week-end night watchman. He occasionally helped
to load freight at the Charlotte terminal when he had leisure time
and other employees were otherwise engaged. On the morning fol-
lowing the commencement of the strike he was asked by George W.
Mason, dispatcher, to help load and unload freight. He refused,
stating that "under the circumstances" he did not "care to go back
right at that time." Mason asked him to notify another employee
to come to work and Rainwater did so on his way home.
On September 9, Rainwater went to the respondent's office to get
his pay. Mason sent him to see Pender, the respondent's agent at
Charlotte, who asked him if he had received a notice of discharge.
Rainwater, replied that he had not, whereupon Pender stated, "Well,
you will get one. I sent one, but I didn't know for certain whether
you belonged to the union or not, but I sent you a letter anyway.
Do you belong to the union?" Rainwater replied in the negative
and Pender told him to disregard the notice. Before Rainwater left
the office he asked Pender about his job as week-end night watchman
and Pender stated that "they had made other arrangements" and
would not need him.
Early in October, which was the regular time for new cars to be
transported, Rainwater applied at the respondent's office for work
but was told that no cars had been unloaded that day. He re-
turned the next day and was given the same answer. On the follow-
ing Friday, about October 6, Rainwater again called at the office
and Mason told him there were no cars to deliver. Rainwater stated
that he would call that evening to find out if any had come in. When
he called Mason was not in but Rainwater was informed by one of
the office employees that Mason was "down at the plant getting out
some cars." Rainwater left word that if he were needed Mason
could call him. That night Mason sent another employee to Rain-
water's home to get some license plates used to drive new cars. Rain-
water went to see Pender the next morning and asked why he was not
getting any work, Pender replied, "As long as you have a boy out
on the picket line and connected with the strike, . . . we can't give
you any more work." When Rainwater protested that his son's ac-
tivities should not be considered in this connection Pender stated,
GREAT SOUTHERN TRUCKING COMPANY 1089
"Well, that is the way we look at it. Well, if you had come back
out and helped us on the warehouse ... we might have let you come
back and have worked again." This testimony was not denied by
Pender and the Trial Examiner accepted it as true. We find that
the statements were made by Pender.
Rainwater was not a member of the Union at the time of the
strike or at any time thereafter. However, the respondent admitted
that it believed that he had gone on strike and that it therefore re-
placed him as week-end watchman at the same time it replaced the
strikers. In its brief the respondent states, "Rainwater's job was
part time and irregular, and due to facts brought to the respondent's
attention shortly after the hearing in this case, the respondent is in
genuine doubt as to whether Rainwater actually left his job." is It
Is clear, as found by the Trial Examiner, that the respondent dis-
charged Rainwater because it believed that he had engaged in the
strike and that it thereafter refused him reemployment because of
the activities of his son in connection with the Union.
We find that the respondent, by discharging Rainwater on Sep-
tember 8, 1939, has discriminated in regard to the hire and tenure
of his employment, thereby discouraging membership in the Union
and interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
3. L. A. Justice
L. A. Justice was first employed by the respondent in April 1937
and at the time of his discharge on March 1, 1939, was employed as
a truck driver. He joined the Union in January 1939 but there is
no evidence that the respondent was aware of his affiliation at the
time he was discharged. His duties were to pick up and deliver
freight in communities neighboring Charlotte and to solicit business
for the respondent between deliveries. George W. Mason, dispatcher
at the Charlotte terminal, testified that Justice was late in returning
to the Charlotte terminal approximately 20 times during a period
of 7 or 8 weeks prior to his discharge. Mason reported to Mathews
and this led to an investigation by Mathews, Pender, and Curran,
who followed Justice on his route several times preceding March
1, 1939. On that date he was discharged by Pender, who assigned
as his reason therefor Justice's "loafing" on the job. Justice did
not reply to the charge of "loafing" at that time. At the hearing
lie testified that Mason had complained to him about his tardiness but
19 At the hearing and in its brief the respondent offered to reinstate Rainwater with
back pay conditionally upon determination by the Board that such tender of reinstatement
would not constitute discrimination in favor of Rainwater and against former employees
who are union members.
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he had explained to Mason that he had been delayed by certain
customers. The Trial Examiner recommended that the complaint
be dismissed as to Justice.
From all the evidence in this case, we conclude that the respondent
did not discharge L. A. Justice because of his membership in and
assistance to the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE,
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
spondent 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.
THE REMEDY
Having found that respondent has engaged in certain unfair labor
practices, we shall order it to cease and desist from such practices
and to take certain affirmative action designed to effectuate the
policies of the Act. We have found that the respondent refused
to bargain collectively with the Union as the exclusive representative
of its employees within an appropriate unit. We shall, therefore,
order the respondent, upon request, to bargain with the Union as
such representative.
We have found further that the respondent discriminated against
the employees listed in Appendix A below and M. 0. Rainwater 11 in
regard to their hire and tenure of employment because they had
gone on strike in protest against the respondent's unfair labor prac-
tices. We shall, therefore, order the respondent to offer them imme-
diate and full reinstatement to their former or substantially equiv-
alent positions without prejudice to their seniority and other rights
and, privileges. The reinstatement shall be effected in the following.
manner : All employees hired after September 6, 1939, the date of
the commencement' of the strike, shall, if necessary to provide em-
ployment for those who are to be reinstated, be dismissed. If, how-
ever, by reason of a reduction in force there are not sufficient jobs
immediately available for the remaining employees, including those
who are to be reinstated, all available positions shall be distributed
among such remaining employees in accordance with the respondent's
usual method of reducing its force, without discrimination against any
employee because of his union affiliation or activities, following a
17 In Rainwater's case, as we have found, the respondent 's discrimination proceeded also
from a mistaken belief that he was a member of the Union.
GREAT SOUTHERN TRUCKING COMPANY 1091
system of seniority to such extent as has heretofore been applied in
the conduct of the respondent's business. Those employees thus laid
off, for whom no employment is immediately available, shall be
placed upon a preferential list prepared in accordance with the
principles set forth in the previous sentence and shall, thereafter,
in accordance with such list, be offered employment as it becomes
available and before other persons are hired for such work. Inas-
much as the Trial Examiner did not recommend the reinstatement of
the employees listed in Appendix A, the respondent will not be re-
quired to give them back pay from February 7, 1940, the date of the
Intermediate Report, to the date of this Decision.1s The back pay
awarded these employees will be a sum of money equal to the amount
which they normally would have earned from September 8, 1939,19
to February 7, 1940, and from the date of this Decision to the date
of the offer of reinstatement, less their net earnings 20 during such
periods. We shall also order the respondent to make M. 0. Rain-
water whole for any loss of pay he has suffered by reason of the
respondent's discrimination against him by payment to him of a
sum of money equal to the amount he would normally have earned as
wages from September 8, 1939, the date of the discrimination against
him, to the date of the offer of reinstatement, less his net earnings 21
during said periods. -
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Stablemen
and Helpers of America, Local #71, is a labor organization, within
the meaning of Section 2 (5) of the Act.
2. All truck drivers, truck drivers' helpers, warehousemen (plat-
form men), checkers, watchmen, and garagemen at the respondent's
Charlotte terminal, excluding mechanics, clerical employees and su-
pervisory employees with authority to hire and discharge, and
temporary employees, at all times material herein constituted and
19 Matter of E. R. Haffelfinger Company, Inc. and United Wall Paper Crafts of North
America, Local No. 6, 1 N. L. R. B. 760.
")Matter of Gulf Public Service Company and International Brotherhood of Electrical
Workers, Local 790, 18 N. L. It. B. 562, enf 'd as mod ., N. L. R. B. v. Gulf Public Service
Co., 116 F. ( 2d) 852 (C. C. A. 5), rehearing denied February 1, 1941.
20 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent , which would not have been incurred but for his un-
lawful discharge and the consequent necessity of his seeking employment elsewhere. See
Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners
of America, Lumber and Sawmill Wbrkers Union, Local 2 590, 8 N. L. It. B. 440. Monies
received for work performed upon Federal , State, county , municipal , or other work-relief
projects shall be considered as earnings. See Republic Steel Corporation v. N. L. R. B ,
311 U. S. 7.
21 See footnote 20, supra.
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
now constitute a unit appropriate for the purposes of collective bar-
gaining, within the meaning of Section 9 (b) of the Act.
3. International Brotherhood of Teamsters, Chauffeurs, Stablemen
and Helpers of America, Local #71, was on April 10, 1939, and at
all times since has been the. exclusive representative of all the em-
ployees in such unit for the purposes of collective bargaining, within
the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Stablemen and Helpers of America,
Local #71, as the exclusive representative of its employees in the
appropriate unit, the respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section '8 (5) of the
Act.
5. By discriminating in regard to the hire and tenure of employ-
ment of the employees listed in Appendix A, and M. O. Rainwater,
thereby discouraging membership in the Union, the respondent has
engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (3) of the Act.
6. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
8. The respondent has not discriminated in regard to the hire and
tenure of employment of L. A. Justice, within the meaning of Section
8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, Great Southern Trucking Company, Charlotte, North Carolina,
and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Stablemen and Helpers of America, Local
#71, or any other labor organization of its employees, by discharging,
refusing to reinstate or in any other manner discriminating in regard
to hire and tenure of employment or any term or condition of em-
ployment of any of its employees;
(b) Refusing to bargain collectively -with International Brother-
hood of Teamsters, Chauffeurs, Stablemen and Helpers of America,
Local #71, as the exclusive representative of all its truck drivers,
GREAT SOUTHERN TRUCKING COMPANY 1093
truck drivers' helpers, warehousemen (platform men ), checkers,
watchmen , and garage men at its Charlotte terminal , excluding me-
chanics, clerical employees , supervisory employees with authority to
hire and discharge , and temporary employees ;
(c) In any other manner interfering with , restraining , or coercing
its employees in the exercise of the right of self -organization, to
form, join, or assist labor organizations , to bargain collectively
through representatives of their own choosing , and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection , as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Brother-
hood of Teamsters , Chauffeurs , Stablemen and Helpers of America,
Local #71, as the exclusive representative of all its truck drivers,
truck drivers ' helpers, warehousemen ( platform men), checkers,
watchmen and garagemen in its Charlotte terminal , excluding me-
chanics, clerical employees , supervisory employees with authority to
hire and discharge , and temporary employees , in respect to rates of
pay, wages , hours of employment , and other conditions of
employment ;
(b) Offer to the employees named in Appendix A and M. O.
Rainwater immediate and full reinstatement to their former or sub-
stantially equivalent positions without prejudice to their seniority
and other rights and privileges ; such offer to be effected in the
manner provided for in the section entitled "The Remedy ," placing
those employees for whom no employment is immediately available
upon a preferential list in the manner therein set forth, and thereafter
in said manner offer them employment as it becomes available;
(c) Make whole the employees listed in Appendix A for any loss
of pay they may have suffered by reason of the respondent's dis-
crimination against them by payment to each of them of a sum of
money equal to that which he normally would have earned as wages
from September 8, 1939, to the date of the Intermediate Report and
from the date of this Order to the date of the offer of reinstatement
or placement on a preferential list, less his net earnings 22 during said
period ;
(d) Make whole M. O. Rainwater for any loss of pay he has
suffered by reason of his discharge, by payment to him of a sum of
money equal to that which he would normally have earned as wages
during the period from September 8, 1939, to the date of the offer
of reinstatement, less his net earnings 23 during said period;
22 See footnote 20, supra.
23 See footnote 20, supra.
451269-42-vol. 34-70
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Post immediately in conspicuous places at its Charlotte, At-
lanta, and High Point terminals, and maintain for a period of at
least sixty (60) consecutive days from the date of posting, notices
to its employees stating (1) that the respondent will not engage in
the conduct from which it is ordered to cease and desist in para-
graphs 1 (a), (b), and (c) of this Order; and (2) that the respond-
ent will take the affirmative action set forth in paragraphs 2 (a),
(b), (c), and (d) of this Order; and (3) that its employees are free
to become or remain members of International Brotherhood of Team-
sters, Chauffeurs, Stablemen and Helpers of America, and the re-
spondent will not discriminate against any' employee' because of
membership or activity in that organization;
(f) Notify the Regional Director for the Fifth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
IT Is ruRTHER oRDERED that the complaint be, and it hereby is,
dismissed, in so far as it alleges that the respondent, by discharging
L. A. Justice, has engaged in unfair labor practices, within the
meaning of Section 8 (3) of the Act.
APPENDIX A
Employees named in the complaint
L. R. Kirkpatrick
H. W. Houston
T. R. Bowers
Dolph C. Black
W. M. Kanynes
C. B. Helms
E. L., Plummer
Herman Rainwater
F. L. Smith
R. H. Springs
J. A. Stephenson
N. H. Woodrow
E. M. Ware
J. D. Weston
J. L. Hampton
W. E. Helms
B. Maurice
Coye Phifer
John S. Turner
W. E. Nance
J. A. Rainwater
Rob. H. Todd
H. W. Capps
Cicero Hunter
F. C. Sheets
Tracey Stafford
F. O. Wyly
E. M. Eubanks
Louis Gorman
R. E. Sherrill
W. W. McCoy
C. B. Hoke
S. R. Howie
A. C. Kiser
A. G. Meacham
C. L. Mullis
Employees named in amendment to complaint
Rex Carter
John Murrow
Alton Hall