Overnite Transportation Co.

National Labor Relations Board - Board Decisions

Sep 15, 1965

154 N.L.R.B. 1271 (N.L.R.B. 1965)

OVERNITE TRANSPORTATION COMPANY 1271
APPENDIX E
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, we hereby notify you that:
WE WILL NOT refuse to bargain collectively with any local union affiliated with
International Retail Clerks Association, AFL-CIO, which is the exclusive bar-
gaining representative of our employees in an appropriate bargaining unit.
WE WILL NOT encourage, assist, or instigate our employees to circulate and file
union decertification petitions or to discontinue paying union dues or to resign
from a union.
WE WILL NOT lay off or otherwise discriminate against employees because of
their refusal to reveal whether they have given statements to Board agents, what
the contents of such statements are, or their knowledge of matters pertaining
to unfair labor practice charges filed against us.
WE WILL NOT request our employees to furnish us with copies of statements
they may have given to the National Labor Relations Board or interrogate them
with respect to the contents thereof.
WE WILL NOT poll or interrogate our employees regarding their preference for
or against union representation, offer, grant, or promise our employees improved
benefits in terms and conditions of employment to induce them to reject their
collective-bargaining representative, or threaten our employees with discharge
or disciplinary action for refusing to state whether they have been interviewed
by a Board agent or have given affidavits or statements in connection therewith,
or for refusing to answer any questions during our investigation of unfair labor
practice charges filed against us.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join, or
assist any labor organization, to join or assist International Retail Clerks Associa-
tion, AFL-CIO, or any of its locals, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and to refrain from any
or all such activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the National Labor Relations
Act, as modified by the Labor-Management Reporting and Disclosure Act of
1959.
All our employees are free to become, remain, or refrain from becoming or remain-
ing, members of any labor organization.
MONTGOMERY WARD & CO., INCORPORATED,
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, 881 U.S.
Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois,
Telephone No. 828-7572, if they have any question concerning this notice or com-
pliance with its provisions.
Overnite Transportation Company and Truck Drivers and Help-
ers Local Union 728, affi liated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America. Case No. 10-CA-5666. September 15, 1965
DECISION AND ORDER
On November 30, 1964, Trial Examiner James F. Foley issued his
Decision in the above-entitled proceeding, finding that the Respondent
154 NLRB No. 98.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices and recommended that
the complaint be dismissed as to such allegations. Thereafter, the
General Counsel, the Charging Party, and the Respondent filed excep-
tions to the Trial Examiner's Decision. The General Counsel and the
Charging Party also filed 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 Brown and Zagoria].
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 case, and hereby adopts the findings,' conclusions,2 and recom-
mendations 3 of the Trial Examiner only to the extent consistent with
this Decision and Order.
The General Counsel and the Charging Party except to the Trial
Examiner's holding that the Respondent did not violate the Act by
terminating the services of an employee who refused, in the course of
his employment, to cross a picket line established at the premises of
the Respondent's customer. The record shows the following facts :
The Respondent maintains an office and terminal facilities in At-
lanta, Georgia, from which it operates as a common carrier by motor
vehicle in the interstate transportation of freight. Its Atlanta cus-
tomers are served by city pickup-and-delivery men driving radio-
1 In crediting Martin's testimony over that given by Ratledge, regarding the latter's
discharge, the Trial Examiner compares the physical characteristics of the two men.
We are unable to ascertain what weight, if any, the Trial Examiner places on the
relative physical attributes of these men. In the circumstances of this case, we fail to
see the relevance of this comparison and disavow any reliance upon it. Further, we
disavow any reliance upon the Trial Examiner's observation regarding "the unlikelihood
that Respondent would risk discharging a leader of the union activity [Ratledgel, a
few days before the date of the Board-conducted election, if the discharge could be
attributed to his union activity." However, we shall affirm the credibility findings of
the Trial Examiner as a clear preponderance of all the relevant evidence does not
demonstrate that they are incorrect. Standard Dry Walt Products, Inc., 91 NLRB 544,
enfd . 188 F. 2d 362 (C.A. 3).
2 We conclude, in substantial agreement with the Trial Examiner and particularly in
the light of the other unfair labor practices found herein, including interrogations of
employees and threats of economic reprisal, that the first numbered paragraph of the
notice posted by the Respondent at its terminal in February 1964 and sent to each em-
ployee violates Section 8(a) (1) of the Act. Sagamore Shirt Company, d/b/a Spruce
Pine Manufacturing Company, 158 NLRB 309.
8 The Trial Examiner concluded that the Respondent promised benefits to employees
if they would reject the Union in the representation election held herein. We find
nothing in the record to warrant this conclusion. Accordingly, we shall modify the
Trial Examiner's Recommended Order by deleting all reference to such conduct.
OVERNITE TRANSPORTATION COMPANY 1273
equipped trucks. These employees are dispatched from the Respond-
ent's terminal to various sections of the city to make deliveries of
freight. They are assigned no particular route. After completing
their deliveries, they pick up freight in accordance with instructions
received by radio from the terminal. In this manner, the driver near-
est the customer usually receives the call.
Wayne O. Styles was employed by the Respondent as a city pickup-
and-delivery truckdriver from June 1963 until March 27, 1964, when
he was terminated. On that date, he had made deliveries as usual
and had, during the course of the day, received instructions from
Thomas D. Goddard, city pickup dispatcher, to pick up freight from
two customers on Moreland Avenue in the city of Atlanta. Styles
proceeded first to the Warren Company, a regular customer, but drove
past without stopping, having noticed a picket line on the company
premises. The picket line was established by Local 728, the same
Union which had been organizing the Respondent's employees since
January 1964 4 Styles went to the second customer on Moreland
Avenue. After taking on freight there, he called the terminal and
spoke to Jesse Arrington, another dispatcher, informing him that he
wanted to honor the picket line established at the Warren Company.
Arrington made no comment, merely dispatching Styles to an "up-
town" location to make an additional pickup. After making that stop,
Styles again radioed the terminal. This time his call was received by
Goddard who inquired why Styles had not picked up the freight at
the Warren Company. According to Goddard's testimony, Styles
replied that the gates were locked and there was nobody to let him in.
Satisfying himself that the Warren Company had an employee on
the gates and that Styles would be able to gain admittance, Goddard
again dispatched Styles to the picketed customer, telling him to make
the pickup before the day was over. Styles returned to the Warren
Company and, observing that the picket line was still there, refused
to enter upon the customer's premises. Goddard thereupon dispatched
another driver to the Warren Company who picked up the freight
immediately and without incident.
Upon returning to the terminal, Styles was called into the office of
Albert P. Vigue, the Respondent's district manager. Vigue told
Styles, according to the latter's testimony, that he would have to let
Styles go "for not following direct orders," and further that as a
matter of company policy, "we didn't honor pickets anywhere, that
we picked up freight everywhere." Styles was then terminated.
The record contains no evidence of a replacement for Styles beyond
mention of the driver who was dispatched to the Warren Company
4 Local 728 won an election held on April 3, 1964, and was certified as the representa-
tive of the Respondent ' s employees on May 1, 1964 ( Case No. 10-RC-5812).
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when Styles refused to cross the picket line. There is further testi-
mony to the effect that five other employees subsequently crossed the
picket line when they were dispatched to the Warren Company.
Based on the foregoing, the Trial Examiner, although not expressly
finding that the Respondent terminated the services of Styles only to
preserve the efficient operation of its business, concluded that the
Respondent did not unlawfully discharge Styles or thereafter unlaw-
fully refuse to reinstate him. He held that by refusing to cross the
picket line at the Warren Company, Styles acquired the status of
an economic striker, and that Styles was thereafter "temporarily
replaced."
We do not agree with these conclusions of the Trial Examiner. The
Board has held, with court approval, that employees engage in pro-
tected concerted activity when they respect a picket line established
at the premises of another employer'5 Recognizing the right of an
employer to run his business despite this protected activity, the Board
has held that an employer does not violate the Act in terminating such
employees if the employer acts "only to preserve efficient operation of
his business, and . . . only so [that he] could immediately or within a
short period thereafter replace them with others willing to perform
the scheduled work. . . ." [Emphasis supplied.] 6 At the same time,
however, it is the Board's view that if the protected right of employ-
ees is to have any meaning at all, then the employer who would justify
a discharge on the basis of an overriding employer interest must pre-
sent more than a mere showing that someone else may have to do the
work. That fact is inherent in every situation where employees fail
to perform a portion of their assigned tasks by respecting a picket line.
To accept it alone as conclusive proof that their services were termi-
nated solely to preserve efficient operation of the employer's business
would be to render illusory any finding that the employees engaged in
protected concerted activity. It would leave the refusal to cross a
picket line without any protection at all. Clearly, what is required is
the balancing of two opposing rights, and it is only when the employ-
er's business need to replace the employees is such as clearly to out-
weigh the employees' right to engage in protected activity that an
invasion of the statutory right is justified.
The facts in this case are clearly distinguishable from those in
Redwing. In that case, the Board upheld as lawful the termination
of employees who had been permanently assigned to certain projects
of the employer's customer and who refused to cross a picket line
established at the customer's premises. After observing that it was
6 Redwing Carriers, Inc., et al., 137 NLRB 1545, enfd . sub nom. Teamsters , Chauffeurs
and Helpers Local Union No. 79, Teamsters v. N.L.R.B., 325 F. 2d 1011 (C.A.D.C. ), cert.
denied 377 U.S. 905; Truck Drivers Union Local No. 413, Teamsters ( Patton Warehouse,
Inc.), 334 F. 2d 539, 545 , cert. denied 379 U.S. 916.
6 Redwing Carriers, Inc., supra, at 1547.
OVERNITE TRANSPORTATION COMPANY 1275
necessary for the employer to reassign other employees from their
normal jobs and also hire new men to do the work, the Board found
that the employer's action was taken entirely for the purpose of con-
tinuing business operations. The Board also found that these events
occurred in a context totally devoid of union animus.
The facts here fall far short of those in Redwing. In this case, the
Respondent's city pickup-and-delivery men are not assigned to reg-
ular routes. They receive pickup assignments by radio continually
during the course of the day's work. When Styles refused to cross
the picket line at the Warren Company, the Respondent's dispatcher
sent another driver who made the pickup immediately and without
incident. Adjustments in the assignment of trucks within the geo-
graphical sphere of their operation would seem commonplace, given
the nature of the Respondent's business, and we are satisfied that the
performance of the rescheduled work by the other driver comports
with his "normal job" under the circumstances of this case. We note,
as well, that Styles continued to make other assigned stops following
his initial confrontation with the picket line, and, for all that appears
in the record, he did not return to the terminal until the end of the.
regular working day. We find, moreover, that the Respondent has
not shown that Styles' conduct rendered him incapable of performing
his job or that it disrupted the Respondent's business in any significant
respect.' In fact, the Respondent, by terminating Styles for disobey-
ing "direct orders," equated the employee's refusal to cross the picket
line with an act of insubordination, showing little or no regard for
the countervailing employee rights that were examined and balanced
in Redwing.
On the basis of the foregoing, we find that the Respondent's inter-
ference with Styles' right to respect the picket line at the Warren Com-
pany outweighs whatever business justification the Respondent urges
as its reason for discharging him. Accordingly, we conclude that by
discharging Styles, the Respondent violated Section 8(a) (1) of the
Act.
Furthermore, in view of the Respondent's demonstrated union ani-
mus, as evidenced by the Trial Examiner's findings of coercive interro-
gation and threats of economic reprisal, which we hereby affirm, we
believe an inference is reasonably warranted that Style's indication. of
union sympathy, reflected by his refusal to cross a picket line of the
same union that was seeking to gain organization of Respondent's
employees, was a contributing consideration in the Respondent's deci-
sion to discharge him. Conduct even in part so motivated tends to dis-
courage union membership. For these reasons, and having previously
7 It is evident from Styles' undisputed testimony, to the effect that Goddard merely
told him to make the pickup at the Warren Company "before the day was out," that the
Respondent did not regard the pickup as a matter of particular urgency.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found that the Respondent did not discharge Styles for a justifiable
business purpose, we conclude that the Respondent violated not only
Section 8(a) (1) of the Act but also Section 8(a) (3).
THE REMEDY
Having found that the Respondent interfered with the right of
Wayne O. Styles to engage in protected concerted activity by discharg-
ing him on March 27, 1964, for refusing to cross the picket line at the
Warren Company, we shall require the Respondent to offer him full
reinstatement to his former or substantially equivalent position, with-
out prejudice to his seniority or other rights and privileges. We shall
also require that the Respondent make Styles whole for any loss of pay
suffered by reason of his discharge. Loss of pay, as aforesaid, shall be
computed in accordance with the formula set forth in F. W. Woolworth
Company, 90 NLRB 289, and shall bear interest at the rate of 6 percent
per annum, as set forth in Isis Plumbing ct Heating Co., 138 NLRB 716.
The unfair labor practices committed by the Respondent involve con-
duct in derogation of the principles of good-faith collective bargaining.
The inference is warranted that the Respondent maintains an attitude
of opposition to the purposes of the Act with respect to the protection
of employee rights and that a potential threat of future violations
exists. Accordingly, we shall order that the Respondent cease and
desist from infringing in any manner upon the rights guaranteed
employees in Section 7 of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Overnite Transportation Company, is an
employer engaged in commerce within the meaning of the Act, and
Truck Drivers and Helpers Local Union 728, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within the meaning of the
Act.
2. The Respondent, by paragraph (1) of the notice of February 1964,
Vigue's interrogation of Simms and Avery, and Marks' conversation
with Ratledge, made threats to employees to persuade them to refrain
from union membership and union activity, and to vote against the
Union in a Board-conducted election, in violation of Section 8(a) (1)
of the Act.
3. By discharging Wayne O. Styles on March 27,1964, for engaging
in protected concerted activity, the Respondent has violated Section
8(a) (1) and (3) of the Act.
4. The Respondent did not violate the Act by District Manager
Vigue's conversation with Ratledge on February 17, 1964, or by Dock
Foreman Baker's conversation with him at the end of March 1964, or
by paragraphs (2) through (6) of the notice to employees of February
1964.
OVERNITE TRANSPORTATION COMPANY 1277
5. The Respondent has not discriminated against employees in viola-
tion of Section 8 (a) (1) and ( 3) of the Act by the discharge of employee
Ratledge on April 2,1964, or by not reinstating him or offering to rein-
state him.
6. The aforesaid unfair labor practices found to have been committed
by the Respondent are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
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, Overnite Transportation Com-
pany, Atlanta , Georgia, its officers, agents , successors , and assigns, shall
take the action set forth in the Trial Examiner's Recommended Order,
as so modified :
1. Substitute the following as paragraphs 1(c) and (d) of the Trial
Examiner's Recommended Order:
"(c) Interfering with the right of employees to engage in protected
concerted activity or discouraging membership in any labor organiza-
tion by discharging employees in violation of Section 8(a) (1) or (3)
of the Act.
"(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist Truck Drivers and Helpers Local Union 728, affiliated
with the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any or
all such activities."
2. Add the following as paragraphs 2(a), (b), and (c) to the Trial
Examiner's Recommended Order, the present paragraphs 2 (a) and (b)
being relettered 2(d) and ( e), respectively:
"(a) Offer to Wayne O. Styles immediate and full reinstatement to
his former or substantially equivalent position , without prejudice to his
seniority or other rights and privileges , and make him whole for any
loss of earnings he may suffered as a result of his discharge, as provided
in the section of this Decision entitled `The Remedy.'
"(b) Notify the above-named employee if presently serving in the
Armed Forces of the United States of his 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.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and all
other records necessary to analyze the amount of backpay due under the
terms of this Order."
3. Substitute the following as the third and fourth indented para-
graphs of the Appendix attached to the Trial Examiner's Decision :
WE WILL NOT interefre with the right of employees to engage in
protected concerted activity by discharging them in violation of
Section 8(a) (1) or (3) of the Act.
WE WILL NOT interfere with the right of employees to engage in
coerce our employees in the exercise of the right to self -organiza-
tion, to form, join, or assist Truck Drivers and Helpers Local
Union 728, affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities.
4. Add the following as the fifth indented paragraph of the Appen-
dix 8 attached to the Trial Examiner's Decision :
WE WILL offer to Wayne O. Styles immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and make
him whole for any loss of earnings he may have suffered as a result
of his discharge.
5. Add the following immediately below the signature line at the
bottom of the Appendix attached to the Trial Examiner's Decision :
NOTE.-We will notify the above-named employee if presently
serving in the Armed Forces of the United States of his right to
full reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed Forces.
IT IS FURTHER ORDERED that those allegations of the complaint alleg-
ing violations of Section 8(a) (1) and (3) of the Act not herein so
found, be, and they hereby are, dismissed.
s The telephone number for Region 10, appearing at the bottom of the Appendix at-
tached to the Trial Examiner's Decision, is amended to read: Telephone No. 526-5741.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case, Case No. 10-CA-5666, was brought under Section 10(b) of the National
Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519), herein called the Act,
on a charge filed April 2 and amended on April 3, 1964, against Overnite Transporta-
tion Company, herein called Respondent, by Truck Drivers and Helpers Local Union
OVERNITE TRANSPORTATION COMPANY 1279
728, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called the Union. On June 5, 1964, the
General Counsel of the National Labor Relations Board issued a complaint against
Respondent, alleging therein that it had violated Section 8 (a) (1) and (3) of the Act.
The allegations of Section 8(a) (1) violations are the posting and distributing of a
notice, and conduct by Respondent District Manager Al Vigue and Safety Director
Lonnie Marks consisting of interrogation of employees regarding their union activity
and membership, and threats to employees that if they selected the Union as bargain-
ing representative Respondent would refuse to sign a contract with it,, would down-
grade their job classifications, and would discharge and otherwise harm' them in their
jobs. The allegations of Section 8 (a) (3) violations are the discriminatory discharges
of Fred H. Ratledge and Wayne O. Styles for membership in and activities on behalf
of the Union, and for other concerted activities for the purpose of collective bargain-
ing and other mutual aid and protection. It is also alleged that Styles was discharged
for refusing to cross a picket line of the Union at the plant of the Warren Company,
Incorporated, a customer of Respondent. General Counsel's motion at the hearing
for leave to strike other allegations of Section 8(a)(1) and (3) of the Act from the
complaint was granted. Respondent denied all the allegations of violations of the Act
in an answer filed June 15, 1964. A hearing was held on July 22, 1964, before Trial
Examiner James F. Foley. General Counsel and Respondent were represented and
all parties were afforded an opportunity to offer evidence, make oral arguments, and
file briefs. No briefs were filed.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent, a Virginia corporation, with an office and place of business in Atlanta,
Georgia, is a motor carrier engaged in the interstate transportation of freight. During
the calendar year 1963, Respondent received in excess of $100,000 from the interstate
transportation of freight. Respondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and assumption of jurisdiction will effectuate the
purposes of the Act.
If. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background evidence
The Union began organizational activity at Respondent's Atlanta, Georgia, terminal
in January 1964.1 The terminal employees were unorganized. Employee leaders
of the organizational activity were Herman Wyke, H. F. Dull, Fred H. Ratledge,
Walter Stanley, Samuel Ivory, George Hill, and another employee with the surname
of Troutt. On or about January 16, 1964, the Union prepared a notice on the letter-
head bearing the identification of "TEAMSTERS #728 ORGANIZING COM-
MITTEE," that the undersigned employees of the Respondent had agreed to serve
as members of the Union's organizing committee at Respondent's terminal, had signed
membership application cards, and intended "to promote in every legal manner the
completion of organization of the Overnite employees of the Atlanta Terminal by
Teamsters Local 728, and we so desire to inform the Company." Forty-one of
Respondent's employees at its Atlanta terminal signed this notice. Shortly thereafter
the notice was sent by the Union to Respondent.
On April 3, 1964, a Board-conducted election was held at Respondent's Atlanta
terminal in a unit of 218 eligible voters comprised of drivers and terminal workers.
The Union received a majority of the votes cast. On May 1, 1964, the Board by the
Regional Director certified that these employees selected the Union as collective-
bargaining representative, and that the Union was their exclusive representative.
Prior to the election, Albert P. Vigue, district agent in charge of the Georgia area for
Respondent, including operations at and out of the Atlanta terminal, had conversa-
tions with many employees in his office, in the terminal yard, and at other locations
'All references to, Respondent hereafter shall refer to its Atlanta terminal and the
terminal operations In Atlanta unless otherwise indicated.
21 have taken official notice of the record in Overnite Transportation Company, Case
No. 10-RC-5812.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the terminal, in which he related what he considered to be advantages of working
for Respondent, and stated a position that Respondent did not favor the selection by
the employees of a union as their collective-bargaining representative.
B. Respondent's notice to employees regarding union activity
In February 1964, Respondent posted on the bulletin board for employees at the
terminal and sent to each one of the terminal employees, the following blue-banded
printed notice:
TO ALL EMPLOYEES
Since the Teamsters Union is putting on another campaign to get in here, a
good many questions have arisen with regard to the following matters. We have
decided to state the Company's position on these questions as clearly as we can
for everybody alike:
(1) This matter is, of course, one of concern to the Company. It is also,
however, a matter of serious concern to you and our sincere belief is that
if the Union were to get in here it would not work to your benefit but, in the
long run would itself operate to your serious harm.
(2) It is our intention to oppose the Union and by every proper means to
prevent it from coming into this operation.
(3) We would like to make it clear that it is not necessary, and it is not
ever going to be necessary, for anybody to belong to the Teamsters Union,
or any other Union, in order to work for this Company.
(4) Those who might join or belong to a Union are not going to get any
advantages or any preferred treatment of any sort over those who do not
join or belong to any Union.
(5) If anybody causes you any trouble at your work or puts you under
any sort of pressure to join the Union, you should let the Company know,
and we will undertake to see that this is stopped.
(6) No person will be allowed to carry on Union organizing activities on
the job. Anybody who does so and who thereby neglects his own work
or interferes with the work of others will be subject to discharge.
Anybody who tells you anything contrary to the foregoing is not telling the
truth.
OVERNITE TRANSPORTATION COMPANY
C. Vigue's preelection conversations with Simms and Avery
Henry C. Simms, a tractor-trailer driver, delivers and picks up freight for Respond-
ent. About 11 a.m. on March 31, 1964, Dispatcher J. B. Jones told him that District
Agent Vigue wanted to see him. He went to see Vigue, and had a conversation with
him. The conversation began about 11:10 a m. It was one of the many Vigue had
with employees prior to the election. Vigue asked Simms how he was doing and how
the job was coming along. Simms answered, "Fine, sir, thank you." Vigue and
Simms reminisced about their younger days. Simms told Vigue he had been raised on
a farm. Vigue related his rise through the ranks of the Respondent Company. Vigue
then said, "You know the Union is trying to get in here," and asked Simms if he was
going to vote "yes" or "no" in the election. Simms answered that if he answered "no"
or "yes" be would be lying as he was still making up his mind how he would vote. He
said to Vigue that he wanted time to think about it. He also said to Vigue that his
father-in-law had told him the Union was crooked. Vigue then said that the ring-
leaders of the organizational activity were Wyke, Dull, and Ratledge, and the sooner
the Company got rid of them, it would be a better place to work. At the end of the
conversation, which came about noon, Vigue said to Simms to "go out and do a good
job for the Company, and when this election comes up to vote `no,' to vote this thing
out." Vigue also said that the Respondent's pension and retirement plans were
superior to those that the Union provides in its contracts.3
8 I have credited Simms' testimony of this conversation after considering the demeanor
testimony of both Simms and Vigue, and the other testimony of both of these witnesses,
in the context of the record made in the case . Ratledge , as discussed in fra, was dis-
charged on April 2, 1964. He was the only one on the organizing committee who was
discharged . Simms testified that he attended union meetings , signed a union card, and
engaged in other activity on behalf of the Union . He also testified he was not mis-
treated by Respondent , and that Vigue did not ask him if he had signed a union card.
OVERNITE TRANSPORTATION COMPANY 1281
Daniel Avery, a tractor-trailer, city pickup driver, had a conversation with Vigue
on March 21, 1964, after the latter had talked with Simms. When Avery reported
for work at 11 a.m., Dispatcher Jesse Arrington told him Vigue wanted to talk to
him. He waited outside Vigue's office from 11 a.m. until Vigue came out of his
office with Avery about 12 o'clock noon .4 He went in Vigue's office, and Vigue fol-
lowed him in. They exchanged greetings. Vigue, after remarking that he had
wanted to interview him sooner, but did not think that he would be able to get to it,
said that they had been having a lot of trouble with the Union, and he wanted to clear
up the Company's viewpoint if he could. Vigue thereupon said that Cochran has
never signed a contract with the Union and was not going to do so, and that they at
Overnite had never dealt with the Union before and did not believe they needed one.'
Vigue continued with the observation that he was not going to ask him how he would
vote, but thought he would do the right thing. He then said that they would like to
depend on him as they needed all of the young drivers. He said further that if the
Union came in, all of the jobs would be on "full seniority bid basis," and they had a
"lot of colored boys here that has 12, 13, 14 years and a lot of them have been here
eight or nine years." Avery answered, "Well, in other words, I might wind up down
on the end of the docks checking freight." Vigue replied, "That's right, you might." 6
D. The discharge of Wayne O. Styles
On March 27, 1964, Dispatcher Thomas D. Goddard instructed Wayne O. Styles, a
city pickup and delivery driver, to pick up freight at the Warren Company, Incor-
porated, in Atlanta, and at another company located in the same area. When a
representative of the Warren Company called in, he informed Respondent that they
were on strike, but there was no violence, and trucks had been coming in without any
trouble. Styles was in Atlanta picking up and delivering freight, and received the
instruction over the two-way radio hookup that Respondent has in its trucks and
tractors for communication between the drivers and the terminal. The two locations
were downtown, and he had to drive across town to get to them.
Styles went to the Warren Company and saw that it was being picketed by the
Union.? He did not stop, but went to the other company and picked up the freight
at that location. After this pickup, he called in to the terminal. Goddard was at
lunch and Dispatcher Jesse Arrington answered. Styles said to Arrington that he
wanted to honor the picket line at Warren Company. Arrington said nothing about
the Warren Company freight, but told him to pick up freight at Peachtree Candy
Company, which was uptown. When Goddard returned, he was told by Arrington
Avery testified that while he waited in the corridor in front of the office in which
Vigue was conversing with Simms, he overheard a conversation taking place in the
adjoining office of Pickup and Delivery Supervisor Nelson Chastain. Those talking were
Chastain ; Dewey Baker, the dock foreman ; E. L. Fortune, assistant to the vice presi-
dent ; and Roy Staples, then a management trainee, and assistant terminal manager at the
time of the bearing. While the statements made by these management employees and
overheard by Avery disclosed union animus, Avery was not certain of the identity of the
one who made a particular statement. Since it cannot be determined which of the state-
ments were made by Staples who was not a supervisor at the time, I do not give any
weight to this testimony. The statements made were not alleged in the complaint as
constituting an unfair labor practice, and were offered for background purposes only.
They were not made in the presence of Avery.
5 Cochran is president of Respondent.
6 This is Avery's testimony, which I have credited after considering the demeanor testi-
mony of Avery and Vigue, and their other testimony, in the context of the record that
was made. On cross-examination, Avery gave testimony of a conversation he had with
Vigue about 2 weeks before March 31. Avery had asked to see Vigue, and spoke to
him about his future. Vigue indicated how he thought Avery could advance himself.
He referred to advantages he had obtained as an employee of Respondent , and to the
history of Respondent. Vigue also referred to a rumor going around the terminal, which
Avery had heard, that President Cochran had signed a contract with the Union. Vigue
said the rumor was not true. I find that this testimony of Avery on cross-examination
about the earlier conversation does not rebut Avery's testimony on direct examination
about the March 31 conversation.
As stated , supra, the Union had been organizing the Respondent 's employees since
January 1964. The notice dated January 16, 1964, the Union sent to Respondent shortly
after that date, supra, which was signed by Respondent 's employees organizing for the
Union , did not contain Styles' signature.
206-446-66-vol. 154-82
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Styles' refusal to pick up the Warren freight. Styles picked up the freight at
Peachtree Candy, and again called in. Goddard answered, and asked him why he had
not picked up at Warren. Styles said the gate was locked and nobody was there.
Goddard called the Warren Company and talked to the shipping clerk. The latter
said there was no violence, and that trucks were coming on to the premises. He also
said Styles did not stop and made no attempt to drive on to the company premises.
Goddard then dispatched Styles again to pick up the Warren freight. When Styles
called in again and talked to Goddard he said "he didn't want to mess in their busi-
ness," and was not going to pick up the freight. Goddard thereupon instructed
another employee by the name of Allen to pick up this freight. Allen drove in and
picked it up. Styles was in the vicinity and saw this pickup. Allen's signature was on
the employees' January 16 notice of their organizing activity (supra). Styles testi-
fied that when he was about to turn into the Warren Company premises, he stopped
on seeing a picket in front of the premises. Three persons across the street asked
him not to go in. He thereupon drove the truck across the street and did not attempt
to pick up the freight. He returned to Respondent's terminal.
Upon his return, Styles unloaded the freight he had on the truck. He was told by
Pickup and Delivery Supervisor Nelson Chastain that District Agent Al Vigue
wanted to see him. It was then about 5:30 p.m. Styles reported to Vigue in the
latter's office. Walter D. Croft, the terminal manager, and second in charge was
also present. Croft had informed Vigue of Styles' refusal to cross the picket line at
the Warren Company. Goddard had reported the incident to Croft.
Vigue asked Styles about his failure to cross the picket line at the Warren Company.
Styles replied that he went to the Warren Company premises, there was a picket line,
he honored it, and refused to cross it. Vigue said to Styles that the Respondent
always picked up freight that was offered to it. He then said to him that he had no
choice, but to fire him since he refused two direct orders from the dispatcher.8 Vigue
handed Styles a check drawn on the petty cash account, and had him sign a company
form entitled "NOTICE OF TERMINATION TO EMPLOYER AND RECEIPT
FOR COMPENSATION DUE." 9 There is no evidence of record that Styles has
ever applied to Respondent in any manner or form for work since being terminated
on March 27, 1964. Respondent has picked up freight regularly at the Warren
Company. In addition to Allen other employees picked it up during the picketing.
E. The discharge of Fred H. Ratledge
Fred H. Ratledge was discharged by Respondent on April 2, 1964, 2 days before the
Board-conducted election (supra). Ratledge had been one of the employee orga-
nizers for the Union since the organizational activity was begun in January 1964. It is
undisputed that Respondent's officials knew he was an employee leader of the organi-
zational activity. Ratledge had been employed by Respondent since August 1951.
At the time of his discharge, Ratledge was a city pickup and delivery driver. He drove
a tractor-trailer combination.
On February 17, 1964, about 8:30 a.m., Ratledge had a conversation with District
Agent Vigue in the latter's office. The conversation lasted about 15 minutes. When
Ratledge reported for work that morning at 7 a.m., he found that his card was not in
the rack near the timeclock. Dewey Baker, the dock foreman, informed him he did
not have a card as Vigue and Terminal Manager Croft wished to see him before he
8I credit the testimony of Vigue, Croft, and A. M. Price, a vice president of all of
Respondent's operations, that since Respondent began operating in 1935 It has been its
policy to cross a picket line to deliver or pick up freight that is offered to it, except when
there Is violence or the possibility of violence. I credit Croft's testimony that during
the 19 years he had been associated with Respondent in Atlanta, it has always crossed
picket lines, including those of the Union, to pick up or deliver freight except where
there was violence or the possibility of violence.
8In substance, it was stated on the form that Styles Involuntarily terminated his em-
ployment with Respondent at 8 p.m., March 27, 1964 ; that he delivered to Respondent
all equipment in his possession, and had reached an understanding with his immediate
supervisor as to the amount of money due to him as wages, and acknowledged receipt of
$94.91 as the wages due; and that he had not been involved in any accident or injuries
of any kind occurring during the course of his employment other than what was already,
reported to Respondent. On March 30, 1964, Respondent notified the Employment
Security Agency, Georgia Department of Labor, Atlanta, Georgia, of the termination of
Styles on March 27, 1964, on a form of that agency entitled, "Separation Notice."
Respondent stated on the form that Styles was "Discharged because: Refused to obey
direct order." Styles received a copy of the form in the mail.
OVERNITE TRANSPORTATION COMPANY 1283
went to work. Croft was there about 8 a.m., but Vigue arrived at 8:30. Ratledge
went into Vigue's office where the conversation took place. Croft and Road Dis-
patcher Watkins were also present.
Vigue said he wished to state the Company's position, that he had been told that
Ratledge was organizing on company property and while he was working. Vigue
then said that four employees would verify this charge on the witness stand, and that
if one more came into his office and told him that Ratledge was organizing on com-
pany property and on working time, he was going to fire him. Ratledge denied he had
been organizing on company property or working time. He said to Vigue he had
been organizing on 14- or 16-hour shifts on Saturday and Sunday on his own time.
Ratledge also said to Vigue that apparently he had made up his mind to fire him, and
might as well do so as he felt other employees of the Company would tell him that
he was "trying to organize on the clock on the premises of Overrate." He then asked
Vigue if he was going to fire him, and Vigue answered, "No, go on back and see Mr.
Jones [the dispatcher] and get your timecard and go back to work." Ratledge asked
Vigue for the time at which he would be "clocked in," and Vigue answered, "At 8:30
o'clock." Ratledge protested, saying that his regular starting time was 7 a.m., but
Vigue answered that he did not have to be there early for the benefit of employees.
Ratledge was "clocked in" at 8 a.m.
On or about March 1, 1964, Lonnie Marks, Respondent's director of safety, engaged
Ratledge in a conversation in Respondent's terminal yard. Marks asked Ratledge
how he was doing, and then invited him to come to the motel where he was staying,
and have supper with him. He said he wanted to talk to him. Ratledge replied that
he could not make it. Marks then said the Company never needed, and never would
need, a union and would never sign a union contract. Ratledge replied, "Well, we'll
see just how they go about that later." 10
About the end of March 1964, Marks and Ratledge had another conversation.
It took place in Vigue's office and no one else was present. Marks said he had
wanted to talk to him, but be had been in Charlotte, North Carolina, and it was the
first chance he had. He asked him how he felt about the Union, and Ratledge
answered that there had been no change in him whatsoever. Marks then said that
he was an old hand, and they would like to have him on their side, but also did not
want to talk about it. He instructed Ratledge to go back to work
About the same time, Ratledge had a conversation with Dewey Baker, the dock
foreman. He engaged Baker in the conversation, and asked him if he had said that
he wanted him to lay off the road drivers. Baker said he did. Ratledge asked Baker
the reason for such a statement, and Baker replied that a driver by the name of
Churchill had reported that he had been soliciting him. He then said, "I just don't
want to see you get fired, Fred." Ratledge answered that he would take care of
himself, and Baker could take care of himself.
On March 31, 1964, about 8:30 p.m., Ratledge was at the entrance to the H. A. W.
Package Store, a small store about a mile from the terminal which sold liquor, ciga-
rettes, and groceries, when Ellwood F. Martin, supervisor in charge of the mainte-
nance shop at the terminal, was about to leave it They met on the threshold It
is undisputed that words were exchanged and Ratledge hit Martin on the left side of
his jaw. H. F. Dull, another employee leader of the union activity who was inside
the store, came out and restrained Ratledge from again hitting Martin by holding his
arms, and then Martin left.
Ratledge testified that they met in the doorway; he asked Martin how he was
doing, and Martin said "You are the son-of-a-bitch causing all the trouble down at
the company"; he hit Martin; Dull came out the door and broke up the fight by
running between him and Martin and grabbing him; and Martin immediately left.
Ratledge also testified that he had been off duty since 6 p.m., had been at home with
his wife and children, and had gone to the store to purchase cigarettes and a loaf of
bread, that he did not make the purchases in view of the altercation, and had not
drunk any liquor that day. On cross-examination, Ratledge testified that he never
discussed union activity or anything regarding the Union with Martin, and did not
know whether Martin was aware of the union activity.
Martin testified that he purchased a six pack of beer at the H. A. W. Package
Store after leaving the terminal about 8:30 p.m.; that Dull and Ratledge came in
the store while he was making the purchase, and Ratledge, after asking him if he
10 Ratledge testified that this was the first time Marks had extended this kind of an
invitation to him. The record is silent as to whether they had had any other type of
friendly get together or association . Marks did not deny having this conversation when
he testified . After evaluating the demeanor and other testimony of Ratledge and Marks
in the context of the record , I have credited the testimony of Ratledge.
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drank "that stuff" and he had answered, "Yes," went back outside; that he went out
the door after completing the purchase, and Ratledge was by the door; that Rat-
ledge asked him why he disliked him, he answered that he did not particularly dis-
like him, Ratledge replied that he heard he did, to which he rejoined it was not
true that he disliked him, and asked him what was wrong with him; 11 that he put
his right hand in his right pocket, reaching for his car keys, and Ratledge said, "Get
your damned hand out of your pocket," and hit him on the left side of his jaw,
causing a bruise; that Dull stepped in between them and grabbed Ratledge, and said,
"Let's go, come on, Fred, let's go home," and Fred said, "I will get you, you little
S013, I will get you"; that he left and got in his car and drove off. Martin denied
that he called Ratledge the name Ratledge testified he called him. He also testified
that he did not report the incident to District Agent Vigue until the next day as he
believed that Ratledge would apologize since he had been drinking. He also testified
that he knew Ratledge had been drinking when he saw him on March 31. Vigue
testified that Martin reported the incident about 6 p.m. on April 1. Vigue's testi-
mony of what Martin said to him coincides with Martin's testimony of what hap-
pened at the H.A.W. Package Store on the evening of March 31.
Dull testified that by coincidence he met Ratledge as they were both on the way
to the package store, and they went into the store together; that Martin was in the
store, and that Ratledge went back out and waited outside; that he saw the alterca-
tion through the screen door, and went out and jumped between them, and grabbed
Ratledge by both lapels; that he was close to him and did not smell liquor on his
breath; that he did not hear what was said prior to the blow, and nothing was said in
his presence after he jumped between them and held Ratledge.
From an evaluation of the above testimony in the context of the record, the
demeanor testimony of the witness, and from my personal observation that Rat-
ledge is over 6 feet in height, and appears to be in good physical condition; and
Martin is about 5 feet 8 or 9 inches in height or less, about the same build, and
also appears to be in good physical condition, I credit the testimony of Martin.
Ratledge, upon seeing Martin, left the store without making any purchases and
waited outside. Obviously, he did so for some reason. I find that the reason was
u On cross-examination, Ratledge testified that when he and Dull were working on
New Year's Eve as volunteers, an incident occurred involving them and Martin. Martin
had just been transferred to the Atlanta terminal He had been working for Respondent
about 6 years. When Vigue talked to them the evening prior to New Year's Eve, the
weather was stormy and it was freezing. Vigue told them to have chains on the tractors
and keep them in the heated garage However, Martin had the chains removed before
they took the tractors out the next morning Ratledge reported to Vigue that Martin
had the chains removed before they were taken out. He said he felt he had to make
this report as he and Dull had a direct order from him to have chains on the tractors
Vigue told Ratledge that when he gave the order everything was frozen solid, but when
they took the tractors out the ice had turned to slush and was "fast melting" Vigue
testified at the hearing that before the tractors were taken out, the weather had changed
from what it had been, and the snow had turned to slush. Ratledge never talked to
Martin about the removal of the chains although Dull had.
On cross-examination, Ratledge also testified that about 2 or 3 months after Martin
was transferred to the Atlanta terminal, he had a colloquy with Martin regarding a
tractor he had taken out on his deliveries and pickups. In accordance with instructions,
Ratledge took a certain tractor from a line in back of the maintenance shop. This place
was reserved for vehicles needing repair or maintenance. This line of vehicles was known
as a deadline. When delivering freight in Atlanta Ratledge found that the tractor had
an air leak. He Informed Martin by telephone. The latter told him he should not
have taken the tractor out, and Ratledge replied he was ordered to do so. Ratledge
asked that another tractor be driven to him, and Martin refused at first, saying that
Ratledge should drive the tractor back to the terminal as he had taken it off the deadline.
Ratledge refused, saying it was unsafe. Martin then had another tractor brought to him,
and had the one in need of repair brought back to the shop. I credit Croft's testimony
that about 6 p.m. of the same day that Ratledge took the tractor off the deadline, and
had the telephone conversation with Martin, he came into Croft's office and related what
had taken place between him and Martin, and said that some of the labor problems were
being caused in the shop, that Martin was giving them, including himself, a hard time,
and that he was not going to sidestep him any more. Croft said he would take the
matter up with Vigue. He reported to Vigue that day what Ratledge said about stand-
ing up to Martin as well as the incident regarding the tractor with the leaking airline.
OVERNITE TRANSPORTATION COMPANY 1285
to confront Martin as he had told Croft he would a short time before when the
incident occurred involving the deadlined tractor. Martin was the smaller man, and
a supervisor. Ratledge did not give any explanation for his departure from the
store without making his purchase, and his waiting outside. While I do not credit
Martin's opinion testimony that Ratledge was drinking, neither do I credit Rat-
ledge's conclusionary testimony that he had not been drinking, even though sup-
ported by Dull's testimony that he did not smell liquor on him, or Ratledge's own
testimony that he had been at home with his wife and children for the 2 hours and
a half after he finished work for the day, and made a trip to the store close to the
terminal merely to purchase a loaf of bread and some cigarettes. Since the election
was to be held on Friday, April 3, just 2 days and a night from the meeting with
Martin, it could well be that Ratledge and Dull, two of the employee leaders of the
union organizing activity, were out together organizing. There is no testimony
showing that Ratledge lived in the vicinity of the terminal, or that the vicinity was
a residential area, or that he would normally go to a store just a mile from the termi-
nal from his home to make an incidental purchase. Martin, on the other hand, had
just left the terminal. His presence at the store was logically explained.
I find from the testimony of Ratledge on direct and cross-examination, and the
testimony of Vigue that the following took place when Ratledge was discharged on
April 2, 1964. When Ratledge reported for work at 7 a.m. on April 2, his card
was not in the rack. He was informed by Terminal Manager Croft that he did not
have one. Croft told Ratledge, in response to his question, that he did not want to
see him, but believed Vigue did. Vigue arrived at the terminal about 8:30 a.m.
Vigue and Ratledge had a conversation in the latter's office. Vigue said he was
surprised at his hitting Martin. Ratledge said that if Vigue called him what Martin
called him he would hit him. Vigue asked what he called him, and Ratledge
described the incident to him, as he testified about it at the hearing. Vigue then
said he had not known that the incident was what he said it was, and that he should
have come to him and let him handle it. He also said that he could not have this
sort of thing going on between supervisors and employees, and would have to fire
him. He extended a check to Ratledge for his wages and asked him to sign a form
which was an acknowledgment that he received the check, and had been involun-
tarily terminated. Ratledge refused to sign, and left without the paycheck. I credit
Vigue's testimony that he had previously discharged two employees for assaulting a
supervisor.
Analysis and Conclusions
On the above evidentiary findings, I make the following analysis and conclusions.
The blue-banded notice Respondent placed on the bulletin board for employees
and distributed to them by mail in February (supra), with the exception of the para-
graph identified as paragraph (6), constitutes a threat within the meaning of Section
8 (a) (1) of the Act. This becomes apparent when it is considered with the coercion
exerted on employees by District Agent Vigue as disclosed by his conversations with
employees Simms, Avery, and Ratledge. The coercive aspect of the notice stems
from the first numbered paragraph which reads:
This matter is, of course, one of concern to the Company. It is also, how-
ever, a matter of serious concern to you and our sincere belief is that if the
Union were to get in here it would not operate to your benefit but, in the long
run would itself operate to your serious harm.'2
I find and conclude that paragraph (6) of the above notice constitutes neither a
threat nor promise of benefit within the meaning of Section 8(a)(1) of the Act. It
is a notice of a valid no-solicitation rule, and is not violative of the Act.13
I find and conclude that District Agent Vigue in his conversation with driver
Henry C. Simms on March 31, 1964 (supra), violated Section 8(a)(1) of the Act.
He interrogated Simms about his union activity, and the way he would vote in the
Board-conducted election on April 3, 1964; promised him benefit if he voted against
the Union, and threatened him with reprisals if he voted for the Union; and threat-
ened to discharge employees Wyke, Dull, and Ratledge for leading the organizational
activity.
'White Oak Acres, Inc., 134 NLRB 1145, 1146, 1150; Rea Construction Company,
137 NLRB 1769, 1774; Morris & Associates, Inc., 138 NLRB 1160, 1161; Cleveland
Woolens, a Division of Burlington Industries, Inc., 140 NLRB 87, 93.
13 Carolina Mirror Corporation , 123 NLRB 1712, 1713.
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find and conclude that District Agent Vigue in his conversation with driver
Daniel Avery on March 31, 1964 (supra), violated Section 8(a)(1) of the Act. He
threatened him and the other employees with a refusal by Respondent to sign a
collective-bargaining contract with the Union, and with lower job classifications and
wages, if they selected the Union as their bargaining representative in the Board-
conducted election on April 3, 1964. He also promised Avery and the other
employees benefit if they rejected the Union as bargaining representative in this
election. I have considered Vigue's statement, that employees with greater senior-
ity in terms of more years of employment would have preferences under a union
contract (supra), to constitute a threat as it was a misrepresentation designed to
mislead Avery and other employees into believing their jobs would be in jeopardy if
the Union won the election. The employees having more years of employment than
Avery and the other drivers were not in the drivers' classification. and, therefore,
under ordinary circumstances, could not compete for the drivers' jobs. Absent a
showing that they would be competitors of Avery and other drivers, which was not
made, it is a statement contrary to fact and a threat.
I find and conclude that Respondent violated Section 8(a)(1) of the Act by
Safety Director Mark's statements to Ratledge, in his conversation with him on or
about March 1, 1964, that Respondent never needed, and never would need, a
union, and would never sign a union contract (supra), and by his interrogation of
Ratledge about the end of March 1964 regarding his feelings about the Union
(supra).
I find and conclude that Respondent did not violate the Act by Vigue's conversa-
tion with Ratledge on February 17, 1964 (supra), and Dock Foreman Baker's con-
versation with him about the end of March 1964 (supra). In the first conversation,
Vigue reprimanded Ratledge for soliciting on working time and on company prem-
ises. While Ratledge gave testimony of his denial to Vigue that he engaged in such
activity, there is no direct evidence that he did not engage in it, or that Vigue did
not have a reasonable belief that he engaged in it in view of what four employees
had reported to him, or other supervisors. There was in existence at the time a
valid no-solicitation rule. Ratledge engaged Baker in the conversation he had with
him. He asked him if he had said he wanted him to stop soliciting the road drivers
Baker said he did, and also said to Ratledge that a driver by the name of Churchill
had reported that Ratledge had solicited him. There is nothing coercive in the
statement by Baker.
I find and conclude that Respondent did not discriminatorily discharge employee
Styles on March 27, 1964, or employee Ratledge on April 2, 1964, or illegally
refuse to reinstate these employees (supra). By refusing to cross the picket line at
the Warren Company premises, Styles has been on strike with the status of an eco-
nomic striker, and has been at least temporarily replaced by Respondent. There
is no evidence of record that the picketing at Warren has ended or, in any event,
that Styles has made an unconditional application for reinstatement. 14 Ratledge, on
this record, was discharged for assaulting Supervisor Martin. The record discloses
the unlikelihood that Respondent would risk discharging a leader of the union activ-
ity, a few days before the date of the Board-conducted election, if the discharge
could be attributed to his union activity. The fact that Ratledge engaged in conduct
at the height of the union activity for which Respondent was justified in discharging
him, does not make the discharge discriminatory. The right of an employer to
operate his business is not suspended during this period.15
N. 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 Respondent described in section 1, 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 com-
merce and the free flow of commerce.
1 Redwing Carriers , Inc., et at, 137 NLRB 1545, sub nom enfd. Teamnstere , Chauffeurs
& Helpers Local 'Union No. 79 v. N.L.R.B., 325 F. 2d 1011 (C.A.D.C.), cert denied 377
U.S. 905.
36 Lloyd A . Fry Roofing Company, 85 NLRB 1222 , 1223-1224 ; N.L.R.B. v. Clearwater
Finishing Co , 216 F. 2d 608 (C.A. 4), modifying and enfg 108 NLRB 268; Ridge Growers,
Inc. v. N.L.R.B., 211 F . 2d 752 (C.A. 5), enfg. 101 NLRB 744.
OVERNITE TRANSPORTATION COMPANY
V. THE REMEDY
1287
Having found that Respondent engaged in certain unfair labor practices, I shall
recommend that Respondent be required to cease and desist from such unfair labor
practices, and take such affirmative action as appears necessary to effectuate the
policies of the Act.
CONCLUSIONS OF LAW
1. Respondent, Overnite Transportation Company, is engaged in commerce within
the meaning of the Act, and Truck Drivers and Helpers Local Union 728, affiliated
with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within the meaning of the Act.
2. Respondent by the notice of February 1964, Vigue's conversation with Simms
and Avery, and Mark's conversation with Ratledge, made threats and promises of
benefit to employees to persuade them to refrain from union membership and union
activity, and to vote against the Union in a Board-conducted election, in violation
of Section 8(a) (1) of the Act.
3 Respondent did not violate the Act by District Agent Vigue's conversation with
Ratledge on February 17, 1964, or by Dock Foreman Baker's conversation with
him at the end of March 1964, or by paragraph (6) of the notice to employees of
February 1964.
4. Respondent has not discriminated against employees in violation of Section
8(a)(3) and (1) of the Act by the termination of the employment of employee
Styles on March 27, 1964.
5. Respondent has not discriminated against employees in violation of Section
8(a)(3) of the Act by a refusal to reinstate employee Styles.
6. Respondent has not discriminated against employees in violation of Section
8(a)(3) of the Act by the discharge of employee Ratledge on April 2, 1964, or by
not reinstating him or offering to reinstate him.
7. The aforesaid unfair labor practices found to have been committed by Respond-
ent are unfair labor practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record
in this case, and pursuant to Section 10(c) of the National Labor Relations Act,
as amended, I hereby recommend that the Respondent, Overnite Transportation
Company, its officers, agents, successors, and assigns, shall.
1. Cease and desist from:
(a) Interrogating employees with respect to union activity or other concerted
activity, in a manner constituting interference with, coercion, or restraint of employ-
ees in violation of Section 8(a) (1) of the Act.
(b) Threatening employees, orally or by notice or other writing, with reprisals
if they engage in union activity, or other concerted activity, or join or select the
Truck Drivers and Helpers Local Union 728, affiliated with the International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any
other labor organization , as their collective -bargaining representative.
(c) Promising employees benefit if they refrain from joining the above Union, or
any other labor organization, or reject it as collective-bargaining representative, or
abandon union activity or other concerted activity.
(d) Or by like or related conduct interfere with, restrain, or coerce employees
in the exercise of their rights to self-organization, to join or assist the above Union,
or any other labor organization, to bargain collectively through representatives of
their own choosing, or to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, as guaranteed in Section 7
of the Act.
2. Take the following affirmative action which I find will effectuate the purposes
of the Act:
(a) Post at its terminal in Atlanta, Georgia, copies of the attached notice marked
"Appendix." 16 Copies of said notice, to be furnished by the Regional Director for
161f this Recommended Order be adopted by the Board , the words " a Decision and
Order" shall be substituted for the words " the Recommended Order of a Trial Examiner"
in the notice . In the further event that the Board 's Order be enforced 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".
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Region 10, shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof, and be maintained by
it for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notice is not altered, defaced, or
covered by any other material.
(b) Notify the said Regional Director, in writing, within 20 days from the receipt
of this Trial Examiner's Decision and Recommended Order, what steps Respondent
has taken to comply herewith.17
It is also recommended that the complaint be dismissed insofar as it alleges viola-
tions of the Act found herein not to violate the Act.
It is further recommended that unless on or before 20 days from the date of the
receipt of this Trial Examiner's Decision and Recommended Order the Respondent
notifies the said Regional Director, in writing, that it will comply with the foregoing
Recommended Order, the National Labor Relations Board issue an order requiring
the Respondent to take the action aforesaid.
'7 In the event that this Recommended Order Is adopted by the Board, paragraph 2(b)
thereof shall be modified to read: "Notify said Regional Director, in writing, within
10 days from the date of this Order, what steps Respondent has taken to comply herewith "
APPENDIX
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 question employees with respect to union activity or other con-
certed activity, in a manner constituting interference with, coercion, or restraint
of employees in violation of Section 8(a)(1) of the National Labor Relations
Act, as amended.
WE WILL NOT threaten employees orally, or by notice or other writing, with
reprisals if they engage in union activity, or other concerted activity, or become
members of, or select the Truck Drivers and Helpers Local Union 728, affiliated
with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization, as their collective-
bargaining representative.
WE WILL NOT promise employees benefits if they abandon union membership,
union activity, or other concerted activity, or reject the above Union or any
other labor organization as collective-bargaining representative.
WE WILL NOT by like or related conduct interfere with, restrain, or coerce
employees in the exercise of their rights to self-organization, to join or assist
the above Union, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities,
for the purpose of collective bargaining or other mutual aid or protection, as
guaranteed in Section 7 of the National Labor Relations Act, as amended.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of Truck Drivers and Helpers Local Union 728, affiliated with
the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers, or any other labor organization.
OVERNITE TRANSPORTATION COMPANY,
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
Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone No.
876-3311, Extension 5357, if they have any questions concerning this notice or
compliance with its provisions.